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Confidential General Release and Employment Separation Agreement - Titan Corp. and Eric M. Demarco

CONFIDENTIAL GENERAL RELEASE AND EMPLOYMENT SEPARATION AGREEMENT

          This Confidential General Release and Employment Separation Agreement (the "Agreement") is entered into as of the Effective Date, defined below in paragraph 9(m), by and between Eric M. Demarco ("Demarco"), on the one hand, and The Titan Corporation (“Titan”), on the other hand.  Demarco and Titan are referred to collectively as the "Parties.”

          WHEREAS, Demarco has been employed by Titan and has served most recently in the role of President and Chief Operating Officer;

          WHEREAS, the Parties have agreed that it is in the best interests of all involved to mutually terminate that employment relationship, to provide for transition of employment responsibilities and to amicably conclude all matters arising out of or related to the employment of Demarco and/or the termination of that employment;

          NOW, therefore, in consideration of the foregoing recitals, and the mutual promises, agreements and understandings contained herein, the Parties hereby agree as follows:

          To effect a full and final settlement and compromise of all  matters whatsoever arising out or related to  Demarco’s employment and the termination thereof, including a full settlement of all possible claims of Demarco, and in consideration of the promises and releases set forth herein, the Parties agree as follows:

          For good and valuable consideration, the receipt and adequacy of which hereby is acknowledged, and as a material inducement to Titan to enter into this Agreement, Eric M. Demarco, on behalf of himself and his representatives, family members, heirs, attorneys, executors, administrators, agents, successors and assigns, and each of them, hereby releases, acquits and forever discharges Titan and all of its current and former subsidiaries, joint venturers and affiliates, and all of their respective directors, shareholders, officers, employees, agents, attorneys, insurers,  and all individuals or entities acting by, through, under or in concert with any of them (collectively, the "Released Parties"), from any and all charges, controversies, claims, wages, rights, agreements, actions, costs or expenses, causes of action, obligations, damages, losses, promises and liabilities of whatever kind or nature (including but not limited to back wages, stock options and attorneys’ fees), in law or equity or otherwise, whether known or unknown, suspected or unsuspected, from the beginning of time to the present, including but not limited to any claims directly or indirectly arising out of, based upon or relating in anyway to the Subsidiary Options, The Titan Deferred Compensation Plan,  Demarco’s employment with Titan (including its affiliates), the termination of such employment or relating to or arising from any alleged act or omission by any of the Released Parties.

          Without limiting the generality of the foregoing, Demarco expressly waives and releases all claims of discrimination, retaliation or harassment on the basis of race, age, sex, religion, sexual orientation, national origin, disability, medical condition or other basis under Title VII of the Civil Rights Act of 1964, as amended; all claims under 42 U.S.C. Section 1091 (discrimination); all claims under Sections 503 and 504 of the Rehabilitation Act of 1973 (handicap discrimination); all claims under the Age Discrimination in Employment Act, as amended, 29 U.S.C. Sections 621 et. seq., or any state counterpart, all claims of discrimination, retaliation or harassment under the California Fair Employment and Housing Act; all claims under the California Labor Code, the California Constitution, the California Family Rights Act or the Family and Medical Leave Act; all claims under the Employee Retirement Income Security Act or the Consolidated Omnibus Budget Reconciliation Act; all claims under the California Industrial Welfare Commission Orders or any local, state, or federal law or regulation governing discrimination in employment; all claims under state contract or tort law such as wrongful termination,  invasion of privacy, breach of the implied covenant of good faith and fair dealing, defamation or negligent or intentional infliction of emotional distress; claims for attorneys’ fees, and all claims pertaining to severance pay, wages, sick leave, vacation pay, life insurance, medical insurance, disability, or any other benefit of employment.

          Demarco expressly agrees that this Agreement and General Release extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, vested or contingent, past, present or future, arising from or attributable to any alleged act or omission of the Released Parties and their respective agents or representatives, occurring prior to the Effective Date of this Agreement, including, without limitation, any alleged act or omission in connection with Demarco’s hiring or employment by, or the termination of his employment with, Titan (including its affiliates), provided, however that nothing in this release shall affect Demarco’s right to enforce the terms of this Agreement.

          Titan hereby releases, acquits and forever discharges Demarco and his heirs, representatives and assigns, from any and all charges, controversies, claims, wages, rights, agreements, actions, costs or expenses, causes of action, obligations, damages, losses, promises and liabilities of whatever kind or nature, in law or equity or otherwise, whether known or unknown, suspected or unsuspected, from the beginning of time to the present, directly or indirectly arising out of, based upon or relating in anyway to Demarco’s employment with Titan (including its affiliates) or relating to or arising from any alleged act or omission by Demarco, provided, however, that nothing in this General Release or Agreement shall be construed to be a waiver or release of any rights Titan has to enforce the terms of this Agreement.

          Titan agrees that this Agreement and General Release extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, vested or contingent, past, present or future, arising from or attributable to any alleged act or omission of Demarco during the course of his employment with Titan.

5.

Release of Unknown Claims

          As to those claims released hereby, the Parties acknowledge and agree that they are aware of and have been advised by counsel of California Civil Code Section 1542, which provides as follows:

          With full awareness and understanding of this provision, the Parties hereby waive all rights which this provision or any comparable provision under any state or federal law may give to them.  They intend the general release set forth in this Agreement to apply to claims which they do not presently know to exist at this time, subject to the representations and warranties provided by the Parties herein.  Subject to the representations and warranties contained in this Agreement, the Parties understand that the facts with respect to which this Agreement is given may hereafter prove to be different from the facts now known or believed by them, and they hereby accept and assume the risk thereof and agree that this Agreement shall be and shall remain, in all respects, effective and not subject to termination or recission by reason of any such difference in facts.

          The Parties understand and agree that this Agreement shall bind and inure to the benefit of the Released Parties and Demarco, their heirs, successors and assigns.

6.

Future Cooperation

          Demarco hereby agrees that, in the event his testimony, services or time are required in the future to assist the Released Parties in handling any legal matter, prosecuting or defending against litigation or to pursue or defend against a disputed claim or charge of any type, he will make himself reasonably available to work with Titan’s attorneys and representatives, to prepare for and provide deposition and/or trial testimony and to take whatever other steps are necessary to assist  in the handling of such legal matters and prosecution/defense of such claims.  Demarco further agrees that he will make himself available to consult with Titan business people in connection with the transition of his business responsibilities as well as such other business matters that may be reasonably requested by Titan. Titan will reimburse Demarco for any reasonable travel expenses incurred on its behalf and at its advance written request in rendering assistance required by this Section 5, provided that Demarco submits documentation in a form acceptable to Titan to substantiate such expenses.  The Parties agree that the request of Titan for Demarco cooperation will not unreasonably interfere with Demarco’s employment with a third party.

          Demarco agrees to keep the terms and substance of this Agreement (including but not limited to any amounts of money paid pursuant thereto), and any of the underlying facts confidential and to refrain from disclosing the same at any future time, or to any other individual or entity whatsoever, except as may reasonably be necessary: (a) in the course of preparing and filing his income tax returns, in the course of any legal proceedings to secure compliance with or enforcement of the terms of the Agreement, or in the course of any inquiry by federal or state authorities (provided, however, that Demarco shall not request that any such inquiry be initiated); or (b) in response to any proper subpoena, court order or lawful discovery request in litigation, after giving reasonable and the most practicable prior notice to Titan, which would allow Titan to timely challenge any such subpoena, order or request.  Specifically exempted from this provision will be disclosure to Demarco’s spouse, legal counsel and individuals who assist him with tax advice and preparation, provided, however, that such exceptions are conditioned upon Demarco instructing such individuals to abide by this confidentiality provision and obtaining from each such individual a commitment not to further disclose such information to any other person or entity whatsoever, with the recognition that such individuals’ breaches of this confidentiality provision could cause significant harm to Titan.

          Nothing in this Agreement shall be construed to affect Demarco’s obligation to testify truthfully upon inquiry by governmental agencies, or in response to a lawful discovery request in litigation, including lawful subpoena or court order.

          Notwithstanding the above, in the event Demarco or his attorneys receive (but may not initiate) inquiries about settlement of the matters covered by this Agreement, or in the event Demarco or his attorneys deem it necessary for the defense of any lawsuit filed against them, they may respond only to the effect that “The matter has been settled to the mutual satisfaction of the parties.”

          The Parties further agree that all agreements or statements Demarco has signed regarding his obligation to maintain the confidentiality of the Released Parties’ confidential and proprietary information, shall remain in full force and effect, and Demarco shall abide by the terms of all such agreements.

          The Parties agree to resolve any claims they may have with each other through final and binding arbitration in accordance with this paragraph, except, if Titan so elects, any dispute relating to paragraph 6 (which protects Titan’s trade secrets, Titan’s proprietary information and the facts and terms of this Agreement from disclosure), may be the subject of an action for injunctive relief in a court of competent jurisdiction as well as a claim for damages through an arbitration proceeding.  This arbitration requirement applies to, among other things, disputes about the validity, interpretation, or effect of this Agreement.

          Except as provided in this paragraph, the arbitration shall be in accordance with the then-current arbitration rules and procedures for employment disputes governing arbitrations administered by the Judicial Arbitration and Mediation Service (JAMS) in San Diego, California  before an experienced arbitrator who either is a retired judge or is licensed to practice law in the State of California and who has been selected in accordance with this provision.  The arbitrator may not modify or change this Agreement in any way.  The Parties and any other Released Party who agrees to arbitrate an arbitrable dispute under this paragraph agree to submit to personal jurisdiction in San Diego County, California for such arbitration and in any jurisdiction necessary for the enforcement of any arbitration award.  The Parties represent that is a convenient dispute resolution location for them.

          The arbitrator shall be selected as follows:  JAMS shall give each party a list of 11 arbitrators drawn from its panel of employment or commercial dispute arbitrators who meet the requirements set forth above.  Each party may strike all names on the list it deems unacceptable.  If only one common name remains on the lists of both parties, that individual shall be designated as the Arbitrator.  If more than one common name remains on the lists of both parties, the parties shall strike names alternately from the list of common names until only one remains.  The party who did not initiate the claim shall strike first.  If no common name exists on the lists of both parties, JAMS shall furnish an additional list, from which the parties shall strike alternately, with the party initiating the claim striking first, until only one name remains.  That person shall be designated as the arbitrator (subject to full disclosure of conflicts that may disqualify that arbitrator).  Striking decisions must be made and communicated to the other party and JAMS within 10 calendar days after the date of the transmittal communication relaying the arbitrators remaining for selection.  In the event a party does not make a timely strike, the other party may select the arbitrator from the names remaining.

          Each party shall pay the fees of its or his attorneys, the expenses of its or his witnesses, and any other expenses that party incurs in connection with the arbitration, but all costs of the arbitration itself, including the fees of the arbitrator, the cost of any record or transcript of the arbitration, and administrative fees shall be paid in equal shares by the plaintiffs and defendants in the proceeding.

          Arbitration in this manner shall be the exclusive remedy for any claim that must be arbitrated pursuant to this paragraph.  Should a party attempt to resolve such a claim by any method other than arbitration pursuant to this paragraph, the responding party will be entitled to recover from the initiating party all damages, expenses, and attorneys’ fees incurred as a result of that breach. 

          Demarco agrees that for a period of three years following the Effective Date, he will not, without the prior written consent of Titan, directly or indirectly, solicit for hire any officer, employee or consultant of Titan or any of its affiliates, or knowingly solicit or encourage any such officer, employee or consultant to leave the employ of Titan or its affiliates, as the case may be.

          Demarco warrants and represents that he has not assigned or in any way conveyed, transferred or encumbered all or any portion of the claims or rights covered by this Agreement.

          Demarco further represents and warrants that he has no knowledge of any claim or potential claim by him of any kind against any of the Released Parties, other than those claims released hereby.  He expressly acknowledges that Titan is relying upon this and the other representations made herein in entering into this Agreement.

          Demarco agrees and promises that he will not file any charge, claim, suit, or action against the Released Parties with any court of law or before any federal, state, or local administrative agency based on the matters released herein.  If any court of law or federal, state, or local administrative agency assumes jurisdiction of any charge, claim, suit, or action against the Released Parties on behalf of Demarco based on the matters released herein, Demarco agrees to direct that court, board or agency to withdraw from, or to dismiss, the charge, claim, suit, or action with prejudice.

          Demarco represents that he has received or will receive independent legal advice regarding his tax obligations and that he has not relied upon any advice from Titan or its attorneys as to the taxability of the payments made and consideration transferred hereunder, whether pursuant to federal, state, or local income tax statute or regulation, or otherwise.  Demarco agrees that he will be solely liable for all tax obligations arising from payment of the settlement sums referenced herein. 

          If any action is brought to enforce or interpret any provision of this Agreement, or the rights or obligations of any party hereunder, each party shall bear all of its own attorneys’, accountants’ and other expert fees and costs incurred or sustained by such party in connection with such action.

          The Parties hereto, and each of them, represent and declare that in executing this Agreement, they rely solely upon their own judgment, belief and knowledge, and on the advice and recommendations of their own independently selected counsel, concerning the nature, extent and duration of their rights and claims and that they have not been influenced to any extent whatsoever in executing the same by any representations or statements covering any matters made by any of the Parties hereto or by any person representing them or any of them.  The Parties acknowledge that no party hereto nor any of their representatives has made any promise, representation or warranty whatsoever, written or oral, as any inducement to enter into this Agreement, except as expressly set forth in this Agreement.

          The Parties represent and warrant that they have carefully read this Agreement and know and understand the contents thereof, and that they signed this Agreement freely and voluntarily.  The individual executing this Agreement on behalf of Titan represents that he is empowered to do so and thereby binds Titan.

          Each party to this Agreement has made such investigation of the facts pertaining to this settlement and this Agreement and of all matters pertaining thereto as he/it deems necessary.

          In entering into this Agreement and the settlement provided for herein, each party assumes the risk of any misrepresentation, concealment or mistake.  If any party should subsequently discover that any fact relied upon by him/it, or that his/its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in such connection or otherwise, including, without limiting the generality of the foregoing, any alleged right or claim to set aside or rescind this Agreement.  This Agreement is intended to be and is final and binding between the Parties hereto with respect to the Released Claims, regardless of any claims of misrepresentation, promise made without the intention of performing, concealment of fact, mistake of fact or law, or of any other circumstance whatsoever.

          The Parties hereto are each solely responsible for their own fees and costs (including but not limited to legal and tax advisor fees and costs) incurred before, from and after the date of this Agreement, and at all times thereafter, except as may be awarded by the Court in connection with any proceedings arising out of the enforcement of the Agreement, regarding enforcement, interpretation, implementation or modifiability of same.

          The representations, warranties and covenants contained in this Agreement are deemed to and shall survive the execution and delivery of this Agreement by all of the Parties.

          DEMARCO REPRESENTS AND WARRANTS THAT HE HAS THOROUGHLY READ AND CONSIDERED ALL ASPECTS OF THIS AGREEMENT, THAT HE UNDERSTANDS ALL PROVISIONS OF THIS AGREEMENT, THAT HE HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL THROUGHOUT THIS PROCESS AND THAT HE IS VOLUNTARILY ENTERING INTO THE AGREEMENT OF HIS OWN FREE WILL, WITHOUT DURESS OR COERCION OF ANY KIND.

Dated:  February 12, 2003	By	/s/ ERIC M. DEMARCO
		Eric M. DeMarco, an individual

		TITAN CORPORATION
Dated:  February 12, 2003	By	/s/ GENE W. RAY
		Gene W. Ray Chief Executive Officer

Approved as to Form:

Dated:  February 17, 2003

By	/s/ A. KENDALL WOOD
	A. Kendall Wood, Attorney for Eric M. DeMarco