EXHIBIT
10.34
SEVERANCE AGREEMENT AND
RELEASE
RECITALS
This Severance Agreement and Release (“
Agreement ”) is made by and between
Christopher G. Kenber (“ Employee ”)
and Hi/fn, Inc. (“ Company ”)
(collectively referred to as the “ Parties
”):
WHEREAS, Employee was employed by the
Company;
WHEREAS, the Company and Employee entered into
the Severance and Change of Control Agreement, effective May 16,
2005 (the “ Severance Agreement
”);
WHEREAS, the Company and Employee entered into a
Proprietary Information and Inventions Agreement (the “
Confidentiality Agreement ”);
WHEREAS, Employee’s employment with
Company and status as a member of the Board of Directors terminated
on November 10, 2006 (the “ Termination Date
”);
WHEREAS, the Parties, and each of them, wish to
resolve any and all disputes, claims, complaints, grievances,
charges, actions, petitions and demands that the Employee may have
against the Company as defined herein, including, but not limited
to, any and all claims arising or in any way related to
Employee’s employment with, or separation from, the
Company;
NOW THEREFORE, in consideration of the promises
made herein, the Parties hereby agree as follows:
COVENANTS
1. Resignation . Employee hereby acknowledges and reaffirms his
resignation as the Company’s President and Chief Executive
Officer and a member of the Company’s Board of Directors
effective as of the Termination Date and from all other officer,
employee and director positions with the Company and its
affiliates.
(a) Severance Pay . Subject to this Agreement becoming effective
(as set forth in Section 24), the Company will pay Employee
$185,000 on its first regularly scheduled payroll date following
the date six (6) months and one day following the Termination Date
and will pay Employee $15,416.66 on each regularly scheduled
payroll date thereafter through the last payroll date on or before
the date twelve (12) months following the Termination Date, in
accordance with the Company’s normal payroll
policies.
(b) Benefits . Subject to this Agreement becoming effective
(as set forth in Section 24), the Company will promptly reimburse
Employee for the same level of medical, dental and/or vision
coverage and benefits as in effect for Employee and his spouse on
the day immediately preceding the Termination Date, provided (i)
Employee constitutes a qualified beneficiary, as
defined in
Section 4980(B)(g)(1) of the Internal Revenue Code of 1986, as
amended; and (ii) Employee elects continuation coverage pursuant to
the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended (“ COBRA ”), within the time
period prescribed pursuant to COBRA. The Company will continue to
reimburse Employee for continuation coverage (at a level of
coverage no less favorable than that provided as of the day
immediately preceding the Termination Date) until the earlier of
(A) the date Employee (or his spouse, as applicable) is no longer
eligible to receive continuation coverage pursuant to COBRA, (B)
the date upon which Employee and his eligible dependents become
covered by similar plans, or (C) twelve (12) months from the
Termination Date. Employee will be responsible for the payment of
COBRA premiums (including, without limitation, all administrative
expenses) for the remaining COBRA period.
(c) Consulting . Commencing on the Termination Date and subject
to this Agreement becoming effective (as set forth in Section 24),
Employee will make himself available to serve as a consultant to
the Company through the date twelve (12) months following the
Termination Date, pursuant to the written consulting agreement (the
“ Consulting Agreement ”) attached
hereto as Exhibit A .
3. Confidential Information . Employee will continue to maintain the
confidentiality of all confidential and proprietary information of
the Company and will continue to comply with the terms and
conditions of the Confidentiality Agreement between Employee and
the Company. Employee will return all of the Company’s
property and confidential and proprietary information in his
possession to the Company on the Effective Date of this
Agreement.
4. Payment of Salary . Employee acknowledges and represents that the
Company has paid all salary, wages, bonuses, accrued vacation,
commissions and any and all other benefits due to Employee once the
above noted payments and benefits are received.
5. Release of Claims . Employee agrees that the foregoing
consideration represents settlement in full of all outstanding
obligations owed to Employee by the Company and its officers,
managers, supervisors, agents and employees. Employee, on his own
behalf, and on behalf of his respective heirs, family members,
executors, agents, and assigns, hereby fully and forever releases
the Company and its officers, directors, employees, agents,
investors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns
(the “ Releasees ”), from, and agrees
not to sue concerning, any claim, duty, obligation or cause of
action relating to any matters of any kind, whether presently known
or unknown, suspected or unsuspected, that Employee may possess
arising from any omissions, acts or facts that have occurred up
until and including the Effective Date of this Agreement including,
without limitation:
(a) any and all claims relating to or arising from
Employee’s employment relationship with the Company and the
termination of that relationship;
(b) any and all claims relating to, or arising
from, Employee’s right to purchase, or actual purchase of
shares of stock of the Company, including, without limitation, any
claims for fraud, misrepresentation, breach of fiduciary duty,
breach of duty under applicable state corporate law, and securities
fraud under any state or federal law;
(c) any and all claims under the law of any
jurisdiction including, but not limited to, wrongful discharge of
employment; constructive discharge from employment; termination in
violation of public policy; discrimination; harassment;
retaliation; breach of contract, both express and implied; breach
of a covenant of good faith and fair dealing, both express and
implied; promissory estoppel; negligent or intentional infliction
of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective
economic advantage; unfair business practices; defamation; libel;
slander; negligence; personal injury; assault; battery; invasion of
privacy; false imprisonment; and conversion;
(d) any and all claims for violation of any
federal, state or municipal statute, including, but not limited to,
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1991, the Age Discrimination in Employment Act of 1967, the
Americans with Disabilities Act of 1990, the Fair Labor Standards
Act, the Employee Retirement Income Security Act of 1974, The
Worker Adjustment and Retraining Notification Act, Older Workers
Benefit Protection Act, the Family and Medical Leave Act, the
California Family Rights Act, the California Fair Employment and
Housing Act, and the California Labor Code, including, but not
limited to California Labor Code Sections 1400-1408;
(e) any and all claims for violation of the
federal, or any state, constitution;
(f) any and all claims arising out of any other
laws and regulations relating to employment or employment
discrimination;
(g) any claim for any loss, cost, damage, or
expense arising out of any dispute over the non-withholding or
other tax treatment of any of the proceeds received by Employee as
a result of this Agreement; and
(h) any and all claims for attorneys’ fees
and costs.
The Company and Employee agree that the release
set forth in this section will be and remain in effect in all
respects as a complete general release as to the matters released.
This release does not extend to any obligations
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