If asked to testify under penalty of
perjury I would declare the following to be true and accurate.
In 1999 I contracted with Todd Porter,
Attorney at Law licensed to practice law in the State of California,
to represent me in the matter of fraud perpetrated by Craig Franklin,
my former husband, and Dan O'Dowd and others, for the benefit of
themselves and Green Hills Software, the corporation where Franklin
was then employed as First Vice President and O'Dowd was President.
The fee arrangement was contingency as
it had been in our previous dealings. I never suggested that this be
modified and would have had no reason to do so since so doing would
have materially damaged me. Contingency agreements are signed to
ensure that only successful outcomes are compensated. The party
taking the risk is the attorney, not the client. Until the morning of
March 31, 2001, the question of another form of compensation never
arose.
That morning, after we ate breakfast,
during which Porter did not raise the question of compensation,
Porter opened his brief case and showed me a paper he said was
essential to accomplishing the Settlement Agreement. That agreement,
he said, was a great deal that he had struggled to get for me. He had
discussed 'the deal' with me several times on the phone, never
mentioning a change of compensation. He had said during those
conversations that he had gotten a real deal for me despite the
difficulties he had encountered. I asked once if those were not
already mine because of the court order but he said that the court
order was not enough to make GHS give them to me. He emphasized that
GHS did not have to give them to me. I now know this and other
assertions he made to me were untrue.
He immediately went on to tell me that
the 'loan' was actually money advanced on the stock that would be
exercised shortly when GHS went public. He said several times,
emphasizing this, that this was a non-recourse loan and there were no
tax repercussions from any part of the Settlement Agreement. He had a
guarantee directly from O'Dowd that the IPO would take place before
2004. He represented the paper I was signing as essential to
protecting my interests and that GHS, "wanted it done this way."
He continued, saying there was a very limited power of attorney with
GHS to further protect all parties. He repeated this several times in
a conversation that took place five minutes before we went into the
offices of Hatch and Parent, linking the paper signed then with the
Settlement Agreement. He said the paper he was presenting for my
signature was integral to the Settlement Agreement.
The Settlement Agreement was presented
to me by Porter as a loan on my options only.
I signed the paper presented but could
not read either the document Porter presented to me or the Settlement
Agreement, relying solely on Porter to tell me what the documents
said. I believed his representations regarding each of the specifics
above as accurate on the morning of March 31st.
That said, I have now read the document and it does not appear to be
the same in length or configuration as that presented to me on the
morning of March 31st,
2008. It is entirely different in content if what Porter told me was
true. I remember the document as being longer, several pages, that
made it impossible for Porter to read it to me in a timely fashion.
I would never have signed the agreement
presented by Whitney on behalf of Porter. The alleged, "new
compensation agreement," in no particular agrees with what I was
told at the time or with the original contingency agreement. In fact,
it appears to be written in cooperation with GHS, reflecting a new
form of compensation for Porter via the creation of a new kind of
stock options, "C," options, which are yet another fiction
that is clearly coming from GHS. Porter did not give me a copy of the
'agreement,' instead saying he would send it later. I do not recall
having ever received such a document from him.
Retrospectively, I realized that what
happened was not usual practice in law, as presented by Porter.
Porter dropped all responsibility to act for me to enforce any
agreement referring me to direct questions to GHS as my attorney in
fact.
I believe that Porter cooperated with
GHS to ensure he was paid when he realized he was in over his head
and not competent to carry out our agreement.
Signed,
Melinda Pillsbury-Foster
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