Exhibit 10.34
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release
(together with its attachments, the “Agreement”) is
made and entered into as of August 14, 2007, by and between
Transmeta Corporation, a Delaware corporation (together with its
subsidiaries, successors and assigns, the “Company”),
and Ralph J. Harms (the “Executive”).
WHEREAS, the Executive has been
employed by the Company as its Chief Financial Officer
(“CFO”);
WHEREAS, the Executive and the
Company desire to terminate that employment relationship as of
August 31, 2007, and the Executive intends to resign his
office as CFO of the Company effective on or before August 31,
2007;
WHEREAS, the Company believes that it
is in the best interest of its shareholders to enter into a
comprehensive separation agreement and release with the
Executive:
WHEREAS, the Executive and the
Company (the “Parties”) desire to settle fully and
finally any and all differences between them, and so have
negotiated and agreed to a final settlement of their respective
rights, obligations and liabilities;
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Executive and the Company hereby agree as
follows:
1. The Parties agree that the
Executive’s employment relationship with the Company is
terminated effective August 31, 2007. The Executive hereby
resigns as CFO and each other office and position in the Company
effective August 31, 2007, or at such earlier date as the
Company appoints a CFO as his successor.
2. Severance Payment. The
Company shall make to the Executive a final lump sum severance
payment of $41,666.67 on August 31, 2007, subject to the
Executive’s continued compliance with the terms and covenants
set out in this Agreement, following the Effective Date (as defined
in Section 6.e below). The Executive acknowledges that such
$41,666.67 sum represents a gross amount before all applicable
federal, state and local withholding taxes that are required to be
deducted by the Company.
3. Health Benefits. Pursuant to
the provisions of COBRA, the Company will continue to pay for the
Executive’s present election of group health benefits for the
Executive and his dependents until he finds employment providing
comparable health benefits, or through and including October 31,
2007, whichever occurs first.
4. Reimbursements. The Company
shall promptly reimburse the Executive for any reasonable business
expenses properly incurred by the Executive through August 31,
2007 and duly submitted by the Executive for reimbursement. The
Company will pay to Executive all expense reimbursements, accrued
vacation, outstanding benefits, salary and
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any
similar payments, if any, owed by the Company to Executive as of
the separation date of August 31, 2007.
5. Stock Options. With respect
to the stock options granted to the Executive by the Company, the
Parties acknowledge and agree to the following:
a. The Parties acknowledge and
agree that the Company has granted to the Executive certain options
to purchase the Company’s common stock as follows: (1) a
July 2006 grant to purchase up to 750,000 shares of the
Company’s common stock at an exercise price of $1.37 per
share (the “Stock Options”). The Parties acknowledge
and agree that the Stock Options are governed by the terms of the
original grant agreement.
b. The Executive acknowledges
and agrees that the Company has not issued to him any option to
purchase common stock of the Company other than the Stock Options
described above in section 5.a of this Agreement, and that he has
no other right, title or interest in or to any option or right to
acquire common stock of the Company.
6. Mutual Releases.
a. Release by the Company. In
consideration of the Executive entering into this Agreement, to the
fullest extent permitted by law, the Company, on behalf of itself
and its subsidiaries, successors and assigns (collectively, the
“Releasing Company Parties”), knowingly and voluntarily
releases and discharges the Executive, and each of the
Executive’s heirs, family members, executors, administrators
and attorneys, and any successor or assign of any of the foregoing
(collectively, the “Released Executive Parties”), from
any claim, charge, action or cause of action that any of the
Releasing Company Parties may have against any of the Released
Executive Parties, whether known or unknown, from the beginning of
time through the Effective Date based upon any act, fact, omission,
matter, cause or thing whatsoever, whether or not related to or
arising out of the Executive’s employment with the Company or
the termination thereof. Notwithstanding the foregoing, this
release shall not extend to or discharge (i) the
Company’s right to enforce the terms and conditions of this
Agreement, or (ii) any rights or claims that might arise after
the Effective Date, or (iii) the Company’s right to
enforce the terms and conditions of the Proprietary Information
Agreement, or (iv) the Company’s right to enforce the
terms and conditions of the Indemnity Agreement, its Certificate of
Incorporation or its Bylaws, or (v) the Company’s right
to collect any applicable federal, state or local withholding taxes
that are required to be deducted by the Company for any reason, all
of which rights and claims shall be preserved, or (vi) the
Company’s rights to enforce the terms and conditions of each
agreement and plan governing the issuance of the Stock Options
referenced in Section 5.a, as well as the stock issued upon
exercise of that stock option. The Company represents and warrants
that it currently knows of no basis for any claims by it against
any Released Executive Party, and that neither the Company nor
anyone acting on its behalf has filed any claim, action, suit,
complaint or proceeding against any Released Executive Party in any
agency, court or other forum or tribunal.
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b. Release by the Executive. In
consideration of the Company entering into this Agreement, to the
fullest extent permitted by law, the Executive, on behalf of
himself and his heirs, executors, administrators, successors and
assigns (collectively, the “Releasing Executive
Parties”), knowingly and voluntarily releases and discharges
the Company and its subsidiaries and affiliates, the respective
current and former officers, employees, attorneys, agents and
directors of the Company and its subsidiaries and affiliates, and
any successor or assign of any of the foregoing (collectively, the
“Released Company Parties”), from any claim, charge,
action or cause of action that any of the Releasing Executive
Parties may have against any of the Released Company Parties,
whether known or unknown, from the beginning of time through the
Effective Date based upon any act, fact, omission, matter, cause or
thing whatsoever, whether or not related to or arising out of the
Executive’s employment with the Company or the termination
thereof. Notwithstanding the foregoing, this release shall not
extend to or discharge any claims that Executive may not release as
a matter of law, including but not limited to any rights to or
claims for indemnification or contribution, including associated
expenses and attorneys fees and the advancement of either of the
foregoing, that Executive currently has or may in the future have
under any of the following: the Certificate of Incorporation or
By-Laws of the Company, under any applicable insurance policy,
under that certain Indemnity Agreement effective as of
July 25, 2006 between Executive and the Company (the
“Indemnity Agreement”), or under any other provision or
principle of law, or otherwise. In addition, this release shall not
extend to or discharge (i) the Executive’s right to
enforce the terms and conditions of this Agreement, or
(ii) any rights or claims that might arise after the Effective
Date, or (iii) the Executive’s right to enforce the
terms and conditions of the Indemnity Agreement or
Executive’s right for indemnity under the Company’s
Certificate of Incorporation or Bylaws, or under any state law, all
of which rights and claims shall be preserved, or (iv) the
Executive’s right to enforce the terms and conditions of each
agreement and plan governing the issuance of each stock option
referenced in Section 5.a, as well as the stock issued upon
exercise of that stock option. Nothing in this Section 6.b
shall prohibit Executive from filing a charge or complaint with a
government agency such as but not limited to the Equal Employment
Opportunity Commission, the National Labor Relations Board,
the
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