any severance payments to you, the
Company may require you to confirm that in writing that the release remains in
full force and effect and covers all claims (other than the exceptions described
in the preceding paragraph) through the date of termination of your employment.
6.
THE RELEASE CONTAINED HEREIN IS INTENDED TO BE COMPLETE AND FINAL AND
TO COVER NOT ONLY CLAIMS, DEMANDS, LIABILITIES, DAMAGES, ACTIONS AND CAUSES OF
ACTION WHICH ARE KNOWN, BUT ALSO CLAIMS, DEMANDS, LIABILITIES, DAMAGES, ACTIONS
AND CAUSES OF ACTION WHICH ARE UNKNOWN OR WHICH YOU DO NOT SUSPECT TO EXIST IN
YOUR FAVOR WHICH, IF KNOWN AT THE TIME OF EXECUTING THIS AGREEMENT, MIGHT HAVE
AFFECTED YOUR ACTIONS, AND THEREFORE YOU EXPRESSLY WAIVE THE BENEFIT OF THE
PROVISION OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor.
You hereby waive and relinquish all rights and benefits which you have or may
have had under Section 1542 of the California Civil Code or the law of any other
state, country, or jurisdiction to the same or similar effect to the full extent
that you may lawfully waive such rights.
7.
IF THE CLOSING OCCURS, THE PAYMENTS MADE BY THE COMPANY PURSUANT TO
THIS LETTER AGREEMENT UPON CLOSING SUPERSEDE ANY SEVERANCE OR OTHER COMPENSATION
TO WHICH YOU ARE ENTITLED PURSUANT TO THE EMPLOYMENT AGREEMENT UPON TERMINATION
OF YOUR EMPLOYMENT OR UPON A CHANGE OF CONTROL, OR UPON ANY OTHER SEVERANCE PLAN
OR POLICY OF THE COMPANY AND ITS SUBSIDIARIES, INCLUDING WITHOUT LIMITATION THE
PAYMENTS UNDER SECTIONS 8 AND 11 OF THE EMPLOYMENT AGREEMENT.
4
8.
THE AGREEMENTS AND OBLIGATIONS OF THE COMPANY AND YOU UNDER SECTIONS 2,
3, 4, 5, 6 AND 7 OF THIS LETTER AGREEMENT SHALL BE CONDITIONED UPON YOUR BEING
AN EMPLOYEE OF THE COMPANY IMMEDIATELY PRIOR TO THE CLOSING UNLESS YOU ARE NOT
AN EMPLOYEE BECAUSE EITHER THE COMPANY TERMINATED YOUR EMPLOYMENT WITHOUT CAUSE
AS PERMITTED BY SECTION 8.2.3 OF THE EMPLOYMENT AGREEMENT OR YOU RESIGN FOR THE
REASONS SET FORTH IN SECTION 8.3.3 OF THE EMPLOYMENT AGREEMENT. IF YOUR
EMPLOYMENT TERMINATES PRIOR TO THE CLOSING FOR ANY OTHER REASON, YOUR RIGHTS AND
OBLIGATIONS UPON TERMINATION AND/OR CHANGE OF CONTROL ARE THOSE SET FORTH IN THE
EMPLOYMENT AGREEMENT WITHOUT MODIFICATION BY THIS LETTER AGREEMENT. IF THE
COMPANY TERMINATES YOUR EMPLOYMENT PRIOR TO THE CLOSING WITHOUT CAUSE, OR IF YOU
RESIGN FOR THE REASONS SET FORTH IN SECTION 8.3.3 OF THE EMPLOYMENT AGREEMENT
PRIOR TO THE CLOSING, YOU SHALL BE ENTITLED TO YOUR BENEFITS UNDER THE
EMPLOYMENT AGREEMENT AND, IF THE CLOSING SUBSEQUENTLY OCCURS: (I) THE BENEFITS
UNDER THIS LETTER AGREEMENT SHALL SUPERSEDE THE BENEFITS UNDER THE EMPLOYMENT
AGREEMENT, AND (II) THE COMPANY SHALL BE ENTITLED TO OFFSET AGAINST PAYMENTS
OWED UNDER THIS LETTER AGREEMENT THE AMOUNT OF ANY