|
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.
2. Consideration .
(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;
-2-
(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 in
|
