COMPANY AND THE EXECUTIVE
SHALL USE THEIR RESPECTIVE REASONABLE COMMERCIAL EFFORTS FROM THE DATE HEREOF
THROUGH THE TERMINATION DATE TO COOPERATE WITH EACH OTHER IN GOOD FAITH TO
FACILITATE A SMOOTH TRANSITION OF EXECUTIVE'S DUTIES TO OTHER EXECUTIVES OF THE
COMPANY.
(B)
CONSULTING. FROM JULY 1, 2006 THROUGH OCTOBER 1,
2006, EXECUTIVE SHALL BE AVAILABLE, ON A NON-EXCLUSIVE BASIS, AS A CONSULTANT TO
RESPOND TO INQUIRIES FROM THE COMPANY REGARDING TRANSITIONAL MATTERS, INCLUDING
BUT NOT LIMITED TO DISCUSSION OF SEC FILINGS MADE PRIOR TO THE MARCH 31, 2006,
PROVIDING INSIGHT INTO RELATIONSHIPS WITH APPROPRIATE PARTIES IN THE INVESTMENT
COMMUNITY WITH THE GOAL OF FACILITATING THE TRANSITION OF THOSE RELATIONSHIPS TO
THE NEW CFO OF THE COMPANY AND OTHER INPUT AND ANALYSIS, THE GOAL OF WHICH TO
ENHANCE THE EFFECTIVENESS OF THE NEW CFO OF THE COMPANY, PROVIDED THAT SUCH
INQUIRIES WOULD NOT INTERFERE IN ANY SIGNIFICANT MANNER WITH OTHER BUSINESS
PURSUITS (INCLUDING OTHER EMPLOYMENT) BY EXECUTIVE.
THE PARTIES AGREE THAT THE
CONSIDERATION PROVIDED FOR IN THIS AGREEMENT SHALL BE SUFFICIENT TO CONSTITUTE
ADEQUATE CONSIDERATION FOR THE FAIR VALUE OF THE FOREGOING CONSULTING
UNDERTAKINGS.
(C)
TRANSFER OF COMPANY PROPERTY. ON OR BEFORE THE
TERMINATION DATE, HE WILL TURN OVER TO THE COMPANY ALL FILES, MEMORANDA,
RECORDS, AND OTHER DOCUMENTS, AND ANY OTHER PHYSICAL OR PERSONAL PROPERTY WHICH
ARE THE PROPERTY OF THE COMPANY AND WHICH HE HAD IN HIS POSSESSION, CUSTODY OR
CONTROL AT THE TIME HE SIGNED THIS AGREEMENT; PROVIDED, HOWEVER, THAT EXECUTIVE
SHALL BE ABLE TO KEEP HIS CURRENT LAP TOP COMPUTER, PROVIDED BY THE COMPANY; AND
PROVIDED, FURTHER, THAT EXECUTIVE MAY RETAIN HIS CELLULAR PHONE (BLACKBERRY) SO
LONG AS THE SERVICE OBLIGATION IS PROMPTLY TRANSFERRED TO EXECUTIVE FOLLOWING
THE TERMINATION DATE.
7.
CALIFORNIA SECTION 1542 WAIVER.
EXECUTIVE ACKNOWLEDGES THAT THERE IS A RISK THAT SUBSEQUENT TO THE EXECUTION OF
THIS AGREEMENT, HE MAY INCUR OR SUFFER DAMAGE, LOSS OR INJURY TO PERSONS OR
PROPERTY THAT IS IN SOME WAY CAUSED BY OR CONNECTED WITH EXECUTIVE'S EMPLOYMENT
OR THE TERMINATION THEREOF, BUT THAT IS UNKNOWN OR UNANTICIPATED AT THE TIME OF
THE EXECUTION OF THIS AGREEMENT. EXECUTIVE DOES HEREBY SPECIFICALLY ASSUME SUCH
RISK AND AGREES THAT THIS AGREEMENT AND THE RELEASES CONTAINED HEREIN SHALL AND
DO APPLY TO ALL UNKNOWN OR UNANTICIPATED RESULTS OF ANY AND ALL MATTERS CAUSED
BY OR CONNECTED WITH EXECUTIVE'S EMPLOYMENT OR THE TERMINATION THEREOF, AS WELL
AS THOSE CURRENTLY KNOWN OR ANTICIPATED. ACCORDINGLY, EXECUTIVE ACKNOWLEDGES
THAT HE HAS READ THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES 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 to him or her must have materially affected his or her settlement with
the debtor
5
and that he expressly waives, relinquishes and forfeits all rights and benefits
accorded by the provisions of California Civil Code Section 1542, and
furthermore waives any rights that he might have to invoke