**Exhibit 10.2**

 

**3COM CORPORATION**

 

**MANAGEMENT RETENTION AGREEMENT**

 

***Amended and Restated as of July 15, 2003***

 

This Management Retention Agreement (the “Agreement”) is made andentered into by and between Dennis Connors (the “Employee”) and 3ComCorporation (the “Company”), amended and restated effective as of July 15,2003.

 

R E C I T A L S

 

A.                                   Itis expected that the Company from time to time will consider the possibility ofan acquisition by another company or other change of control.  The Board of Directors of the Company (the“Board”) recognizes that such consideration can be a distraction to theEmployee and can cause the Employee to consider alternative employmentopportunities.  The Board has determinedthat it is in the best interests of the Company and its stockholders to assurethat the Company will have the continued dedication and objectivity of theEmployee, notwithstanding the possibility, threat or occurrence of a Change ofControl (as defined below) of the Company.

 

B.                                     TheBoard believes that it is in the best interests of the Company and itsstockholders to provide the Employee with an incentive to continue hisemployment and to motivate the Employee to maximize the value of the Companyupon a Change of Control for the benefit of its stockholders.

 

C.                                     TheBoard believes that it is imperative to provide the Employee with severancebenefits upon Employee’s termination of employment within 3 months prior to orwithin 12 months following a Change of Control or certain terminations ofemployment following the disposition of certain Commworks assets which providesthe Employee with enhanced financial security and provides incentive andencouragement to the Employee to remain with the Company notwithstanding thepossibility of a Change of Control.

 

D.                                    Certaincapitalized terms used in the Agreement are defined in Section 5 below.

 

The parties hereto agree as follows:

 

# 1.                                       Termof Agreement.  This Agreement shallterminate upon the date that all obligations of the parties hereto with respectto this Agreement have been satisfied.

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# 2.                                       At-WillEmployment.  The Company and theEmployee acknowledge that the Employee’s employment is and shall continue to beat-will, as defined under applicable law, and may be terminated by either partyat any time, with or without cause.  Ifthe Employee’s employment terminates for any reason, including (withoutlimitation) any termination more than

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# 3 months prior to a Change of Control, the Employee shall not beentitled to any payments, benefits, damages, awards or compensation other thanas provided by this Agreement, or as may otherwise be available in accordancewith the Company’s established employee plans or pursuant to other writtenagreements with the Company.

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# 3.                                       Changeof Control Severance Benefits; Special Commworks Asset Disposition Provisions.

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## (a)                                  InvoluntaryTermination other than for Cause, Death or Disability or Voluntary Terminationfor Good Reason Within Three (3) Months Prior to or Within Twelve (12) Months FollowingA Change of Control.  If, withinthree (3) months prior to or within twelve (12) months following a Change ofControl, Employee’s employment is terminated (i) involuntarily by the Companyother than for Cause, death or Disability or (ii) by the Employee pursuant to aVoluntary Termination for Good Reason, then, subject to Employee entering intoa standard form of mutual release of claims with the Company in substantiallythe form attached hereto as Exhibit A (as updated to reflect applicable state andfederal law), the Company shall provide Employee with the following benefitsupon such termination.

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### (i)                                     Lump-SumPayment.   A lump-sum cash paymentin an amount equal to one hundred percent (100%) of the Employee’s AnnualCompensation;

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### (ii)                                  ContinuedEmployee Benefits.   The Companyshall provide Company-paid health, dental, vision, long-term disability andlife insurance coverage at the same level of coverage as was provided to suchEmployee immediately prior to the termination of employment and at the sameratio of Company premium payment to Employee premium payment as was in effectimmediately prior to the termination of employment (the “Company-PaidCoverage”).  If such coverage includedthe Employee’s dependents immediately prior to the Change of Control, suchdependents shall also be covered at Company expense.  Company-Paid Coverage shall continue until the earlier of(i) two years from the date of termination, or (ii) the date uponwhich the Employee and his dependents become covered under another employer’sgroup health, dental, vision, long-term disability or life insurance plans thatprovide Employee and his dependents with comparable benefits and levels ofcoverage.  For purposes of Title X ofthe Consolidated Budget Reconciliation Act of 1985 (“COBRA”), the date of the“qualifying event” for Employee and his or her dependents shall be the dateupon which the Company-Paid Coverage commences, and each month of Company-PaidCoverage provided hereunder shall offset a month of continuation coverageotherwise due under COBRA.

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### (iii)                               Pro-RatedBonus Payment.   A lump-sum cashpayment equal to 100% of such Employee’s target bonus as in effect for thefiscal year in which the Change of Control occurs, pro-rated by multiplyingsuch bonus amount by a fraction, the numerator of which shall be the number ofdays prior to occurrence of the Change of Control during such fiscal year, andthe denominator of which shall be three-hundred and sixty-five.

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### (iv)                              EquityCompensation Accelerated Vesting.  One hundred percent (100%) of the unvested portion of any stock option,restricted stock or other Company equity compensation held by the Employeeshall automatically be accelerated in full so as to become

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### completely vested; provided, however, that if this is due to atermination occurring within three months prior to a Change of Control, suchacceleration shall become effective upon the date of the Change of Control.

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### (v)                                 Extensionof Stock Option and Stock Appreciation Right Post-Termination Exercisability.  The post-termination exercise period of anyoutstanding Company stock options and stock appreciation rights held byEmployee shall be extended to the lesser of (A) one year from the date ofEmployee’s termination, or (B) the original term of the award.

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## (b)                                 VoluntaryResignation; Termination For Cause. If the Employee’s employment terminates by reason of the Employee’svoluntary resignation (and is not a Voluntary Termination for Good Reason), orif the Employee is terminated for Cause, then the Employee shall not beentitled to receive severance or other benefits except for those (if any) asmay then be established under the Company’s then existing severance andbenefits plans or pursuant to other written agreements with the Company.

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## (c)                                  Disability;Death.  If the Employee’s employmentwith the Company terminates as a result of the Employee’s Disability, or ifEmployee’s employment is terminated due to the death of the Employee, then theEmployee shall not be entitled to receive severance or other benefits exceptfor those (if any) as may then be established under the Company’s then existingseverance and benefits plans or pursuant to other written agreements with theCompany.

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## (d)                                 TerminationApart from Change of Control.  Inthe event the Employee’s employment is terminated for any reason, either priorto three (3) months before the occurrence of a Change of Control or after thetwelve (12) month period following a Change of Control, then the Employee shallbe entitled to receive severance and any other benefits only as may then beestablished under the Company’s existing severance and benefits plans orpursuant to other written agreements with the Company.

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## (e)                                  SpecialProvisions Following Commworks Asset Disposition.  The Company and Employee agree that because (i) a substantialportion of the Commworks assets have been acquired by UTStarcom, Inc., (ii)Employee has subsequently accepted a Section 16 officer position with theCompany, and (iii) the Company is allowing Employee, on an interim basis(through June 1, 2004), to commute from Texas to the Company’s newcorporate headquarters in Marlborough, Massachusetts, with certain commutingexpenses reimbursed on a grossed-up basis (the “Commuting Benefit”) as setforth in the letter agreement by and between the Company and Employee effectiveJune 1, 2003 (the “6/1/03 Letter Agreement”), subject to Employee enteringinto a standard form of mutual release of claims with the Company insubstantially the form attached hereto as Exhibit A (as updated to reflectapplicable state and federal law), Employee shall be eligible to receive thebenefits set forth in Section 3(a) hereof in the event that either (A) heis required to relocate his primary residence to the Company’s corporateheadquarters in Marlborough, Massachusetts by June 1, 2004, Employeedeclines to relocate and Employee’s employment terminates thereafter on a datespecified by the Company’s CEO after consulting with Employee, or (B) theCompany ceases or reduces the level of Employee’s Commuting Benefits and hisemployment with the Company terminates other than for Cause, death orDisability within 90 days thereafter; provided, however, that Employee shall furnish the Company with priorwritten notice of

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## his intention to terminate employment due to a cessation or reductionin the level of his Commuting Benefits and, with respect to any cessation orreduction in the level of Employee’s Commuting Benefits that are unintentionalor insignificant, a period of 15 days from the Company’s receipt of suchwritten notice to cure the cessation or reduction of such CommutingBenefits.  The Company may, in its solediscretion, extend the period in which Employee is allowed to commute toMarlborough by a period of up to one year by means of a writing or e-mail fromthe CEO of the Company to Employee.  Inthe event of such an extension of up to one year, no benefits shall be payable toEmployee pursuant to this special Section 3(e) on account of anytermination of Employee’s employment with the Company occurring more thanninety (90) days following the termination of the extension period.  In the event there is no extension, then nobenefits shall be payable to Employee pursuant to this specialSection 3(e) on account of any termination of Employee’s employment withthe Company occurring more than the later or (i) ninety (90) days followingJune 1, 2004, or (ii) a date mutually agreed upon by the CEO and Employee inwriting or by e-mail.

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# 4.                                       GoldenParachute Excise Taxes.

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## (a)                                  ParachutePayments of Less than 3.59 x Base Amount. In the event that the benefits provided for in this agreement orotherwise payable to Employee (a) constitute “parachute payments” withinthe meaning of Section 280G of the Internal Revenue Code of 1986, asamended (the “Code”), (b) would be subject to the excise tax imposed bySection 4999 of the Code, and (c) the aggregate value of such parachutepayments, as determined in accordance with Section 280G of the Code andthe proposed Treasury Regulations thereunder (or the final TreasuryRegulations, if they have then been adopted) is less than the product obtainedby multiplying 3.59 by Employee’s “base amount” within the meaning of  Code Section 280G(b)(3), then suchbenefits shall be reduced to the extent necessary (but only to that extent) sothat no portion of such benefits will be subject to excise tax underSection 4999 of the Code.

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## (b)                                 ParachutePayments Equal to or Greater than 3.59 x Base Amount.  In the event that the benefits provided forin this agreement or otherwise payable to Employee (a) constitute“parachute payments” within the meaning of Section 280G of the Code,(b) would be subject to the excise tax imposed by Section 4999 of theCode, and (c) the aggregate value of such parachute payments, as determined inaccordance with Section 280G of the Code and the proposed TreasuryRegulations thereunder (or the final Treasury Regulations, if they have thenbeen adopted) is equal to or greater than the product obtained by multiplying3.59 by Employee’s “base amount” within the meaning of  Code Section 280G(b)(3), then theEmployee shall receive (i) a payment from the Company sufficient to paysuch excise tax, plus (ii) an additional payment from the Companysufficient to pay the excise tax and federal and state income and employmenttaxes arising from the payments made by the Company to Employee pursuant tothis sentence.

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## (c)                                  280GDeterminations.  Unless the Companyand the Employee otherwise agree in writing, the determination of Employee’sexcise tax liability and the amount required to be paid or reduced under thisSection 4 shall be made in writing by the Company’s independent auditorswho are primarily used by the Company immediately prior to the Change ofControl (the “Accountants”).  Forpurposes of making the calculations required by this Section 4, theAccountants may make reasonable assumptions and approximations concerningapplicable taxes and may rely on

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## reasonable, good faith interpretations concerning the application ofSections 280G and 4999 of the Code.  TheCompany and the Employee shall furnish to the Accountants such information anddocuments as the Accountants may reasonably request in order to make adetermination under this Section.  TheCompany shall bear all costs the Accountants may reasonably incur in connectionwith any calculations contemplated by this Section 4.

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# 5.                                       Definitionof Terms.  The following termsreferred to in this Agreement shall have the following meanings:

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## (a)                                  AnnualCompensation.  “Annual Compensation”shall mean an amount equal to the sum of (i) the Employee’s Company annualbase salary as in effect immediately preceding the Change of Control or severancebenefit trigger under Section 3(e) hereof, as applicable, and(ii) 100% of the Employee’s Target Bonus.

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## (b)                                 Cause.  “Cause” shall mean (i) an act ofpersonal dishonesty taken by the Employee in connection with hisresponsibilities as an employee and intended to result in substantial personalenrichment of the Employee, (ii) Employee being convicted of a felony,(iii) a willful act by the Employee which constitutes gross misconduct andwhich is injurious to the Company, (iv) following delivery to the Employeeof a written demand for performance from the Company which describes the basisfor the Company’s reasonable belief that the Employee has not substantiallyperformed his duties, continued violations by the Employee of the Employee’sobligations to the Company which are demonstrably willful and deliberate on theEmployee’s part.

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## (c)                                  Changeof Control.  “Change of Control”means the occurrence of any of the following events:

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### (i)                                     AnyPerson becomes the “beneficial owner” (as defined in Rule 13d-3 under saidAct), directly or indirectly, of securities of the Company representing fiftypercent (50%) or more of the total voting power represented by the Company’sthen outstanding voting securities; or

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### (ii)                                  Theconsummation of the sale or disposition by the Company of all or substantiallyall the Company’s assets; or

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### (iii)                               Theconsummation of a merger or consolidation of the Company with any othercorporation, other than a merger or consolidation which would result in thevoting securities of the Company outstanding immediately prior theretocontinuing to represent (either by remaining outstanding or by being convertedinto voting securities of the surviving entity) at least fifty percent (50%) ofthe total voting power represented by the voting securities of the Company orsuch surviving entity outstanding immediately after such merger orconsolidation; or

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### (iv)                              Achange in the composition of the Board occurring within a two-year period, as aresult of which fewer than a majority of the directors are IncumbentDirectors.  “Incumbent Directors” shallmean directors who either (A) are directors of the Company as of the dateupon which this Agreement was entered into, or (B) are elected, ornominated for election, to the Board with the affirmative votes of at least amajority of those directors whose election or

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### nomination was not in connection with any transaction described insubsections (i), (ii), or (iii) above, or in connection with an actual orthreatened proxy contest relating to the election of directors to the Company.

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## (d)                                 Disability.  “Disability” shall mean that the Employeehas been unable to perform his Company duties as the result of his incapacitydue to physical or mental illness, and such inability, at least 26 weeks afterits commencement, is determined to be total and permanent by a physicianselected by the Company or its insurers and acceptable to the Employee or theEmployee’s legal representative (such Agreement as to acceptability not to beunreasonably withheld).  Terminationresulting from Disability may only be effected after at least 30 days’ writtennotice by the Company of its intention to terminate the Employee’s employment.  In the event that the Employee resumes theperformance of substantially all of his duties hereunder before the terminationof his employment becomes effective, the notice of intent to terminate shallautomatically be deemed to have been revoked.

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## (e)                                  Person.  “Person” shall have the same meaningaccorded to such term in Sections 13(d) and 14(d) of the SecuritiesExchange Act of 1934, as amended.

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## (f)                                    TargetBonus.  “Target Bonus” shall meanEmployee’s annual bonus, assuming 100% “on target” satisfaction of anyobjective or subjective performance milestones.

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## (g)                                 VoluntaryTermination for Good Reason. “Voluntary Termination for Good Reason” shall mean the Employeevoluntarily resigns after the occurrence of any of the following:(i) without the Employee’s express written consent, a material reductionof the Employee’s duties, title, authority or responsibilities, relative to theEmployee’s duties, title, authority or responsibilities as in effectimmediately prior to such reduction, or the assignment to Employee of suchreduced duties, title, authority or responsibilities; provided, however, that areduction in duties, title, authority or responsibilities solely by virtue ofthe consummation of a Change of Control (as, for example, when the Company’sExecutive Vice-President, World-Wide Operations remains as such following aChange of Control) shall not by itself constitute grounds for a “VoluntaryTermination for Good Reason;” (ii) without the Employee’s express writtenconsent, a material reduction of the facilities and perquisites (includingoffice space and location) available to the Employee immediately prior to suchreduction, other than a reduction generally applicable to all senior managementof the Company; (iii) a reduction by the Company in the base salary of theEmployee as in effect immediately prior to such reduction; (iv) a materialreduction by the Company in the aggregate level of employee benefits, includingbonuses, to which the Employee was entitled immediately prior to such reductionwith the result that the Employee’s aggregate benefits package is materiallyreduced (other than a reduction that generally applies to Company employees);(v) the relocation of the Employee to a facility or a location more thanthirty-five (35) miles from the Employee’s then present location, without theEmployee’s express written consent; or (vi) any act or set of facts orcircumstances which would, under California case law or statute constitute aconstructive termination of the Employee.

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# 6.                                       Non-Solicitation.  In consideration for the severance benefitsEmployee is to receive herein, if any, Employee agrees that he or she will not,at any time during the one year following his or her termination date, directlyor indirectly solicit any individuals to leave the Company’s (or any

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# of its subsidiaries’) employ for any reason or interfere in any othermanner with the employment relationships at the time existing between theCompany (or any of its subsidiaries) and its current or prospective employees.

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# 7.                                       Successors.

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## (a)                                  Company’sSuccessors.   Any successor to theCompany (whether direct or indirect and whether by purchase, merger,consolidation, liquidation or otherwise) to all or substantially all of theCompany’s business and/or assets shall assume the obligations under thisAgreement and agree expressly to perform the obligations under this Agreementin the same manner and to the same extent as the Company would be required toperform such obligations in the absence of a succession.  For all purposes under this Agreement, theterm “Company” shall include any successor to the Company’s business and/orassets which executes and delivers the assumption agreement described in thisSection 7(a) or which becomes bound by the terms of this Agreement byoperation of law.

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## (b)                                 Employee’sSuccessors.   The terms of thisAgreement and all rights of the Employee hereunder shall inure to the benefitof, and be enforceable by, the Employee’s personal or legal representatives,executors, administrators, successors, heirs, distributees, devisees andlegatees.

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# 8.                                       Notice.

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## (a)                                  General.   Notices and all other communicationscontemplated by this Agreement shall be in writing and shall be deemed to havebeen duly given when personally delivered or one day following mailing viaFederal Express or similar overnight courier service.  In the case of the Employee, mailed notices shall be addressed tohim at the home address which he most recently communicated to the Company inwriting.  In the case of the Company,mailed notices shall be addressed to its corporate headquarters, and allnotices shall be directed to the attention of its Secretary.

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## (b)                                 Noticeof Termination.  Any termination bythe Company for Cause or by the Employee pursuant to a Voluntary Terminationfor Good Reason shall be communicated by a notice of termination to the otherparty hereto given in accordance with Section 8(a) of this Agreement.  Such notice shall indicate the specifictermination provision in this Agreement relied upon, shall set forth inreasonable detail the facts and circumstances claimed to provide a basis fortermination under the provision so indicated, and shall specify the terminationdate (which shall be not more than 30 days after the giving of suchnotice).  The failure by the Employee toinclude in the notice any fact or circumstance which contributes to a showingof Voluntary Termination for Good Reason shall not waive any right of theEmployee hereunder or preclude the Employee from asserting such fact orcircumstance in enforcing his rights hereunder.

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# 9.                                       MiscellaneousProvisions.

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## (a)                                  NoDuty to Mitigate.   The Employeeshall not be required to mitigate the value of any benefits contemplated bythis Agreement, nor shall any such benefits be reduced by any earnings orbenefits that the Employee may receive from any other source.

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## (b)                                 Waiver.   No provision of this Agreement shall bemodified, waived or discharged unless the modification, waiver or discharge isagreed to in writing and signed by the Employee and by two authorized officersof the Company (other than the Employee). No waiver by either party of any breach of, or of compliance with, anycondition or provision of this Agreement by the other party shall be considereda waiver of any other condition or provision or of the same condition orprovision at another time.

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## (c)                                  WholeAgreement.   No agreements,representations or understandings (whether oral or written and whether expressor implied) which are not expressly set forth in this Agreement have been madeor entered into by either party with respect to the subject matter hereof.  This Agreement represents the entireunderstanding of the parties hereto with respect to the subject matter hereofand supersedes all prior arrangements and understandings regarding same.

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## (d)                                 Choiceof Law.   The validity,interpretation, construction and performance of this Agreement shall begoverned by the laws of the State of California.

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## (e)                                  Severability.   The invalidity or unenforceability of anyprovision or provisions of this Agreement shall not affect the validity orenforceability of any other provision hereof, which shall remain in full forceand effect.

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## (f)                                    Counterparts.   This Agreement may be executed incounterparts, each of which shall be deemed an original, but all of whichtogether will constitute one and the same instrument.

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IN WITNESS WHEREOF, each of the parties hasexecuted this Agreement, in the case of the Company by its duly authorized officers.

 

 
| **COMPANY**  |                                                 | **3COM CORPORATION**  |
|--------------|------------------------------------------------------|-----------------------|
|         |                                                 |
|         | By:                                                  | /s/ Bruce L.  Claflin |
|         |                                                 | BRUCE L.  CLAFLIN     |
|         |                                                 |                  |
|         | Title:  President & CEO                     |
|         |                                                 |                  |
|         | and                                                  |
|         |                                                 |
|         |                                                 |                  |
|         | By:                                                  | /s/ Mark D.  Michael  |
|         |                                                 | MARK D.  MICHAEL      |
|         |                                                 |                  |
|         | Title:  S.V.P., General Counsel & Secretary |
|         |                                                 |                  |
|         |                                                 |
| **EMPLOYEE** | By:                                                  | /s/ Dennis  Connors   |
|         |                                                 | DENNIS  CONNORS       |

 

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**EXHIBIT A**

 

**MUTUAL RELEASE OF CLAIMS**

 

This Mutual Release of Claims (“Release”) is made by and between 3ComCorporation, Inc. (the “Company”) and                          ”Employee”).

 

**RECITALS**

 

WHEREAS, the Company and Employee (collectively referred to as “theParties”) have agreed that Employee is to receive certain severance benefitspursuant to the agreement to which this Release is attached as Exhibit A(the “Management Retention Agreement”);

 

NOW THEREFORE, in connection with the promises made herein and in theManagement Retention Agreement, the Company and Employee hereby agree asfollows:

 

1.                                       ConfidentialInformation.  Employee shallcontinue to maintain the confidentiality of all confidential and proprietaryinformation of the Company and shall continue to comply with the terms and conditions of the ConfidentialInformation and Invention Assignment Agreement previously entered into by andbetween the Company and Employee.

 

2.                                       Payment ofSalary.  The Company represents andEmployee acknowledges and represents that the Company has paid (or will paypursuant to the terms of the applicable plan or program and the ManagementRetention Agreement) all salary, wages, bonuses, commissions, accrued vacationand expense reimbursements and any and all other benefits due to Employeethrough the date of signing of this Release.

 

3.                                       Release ofClaims.  Employee agrees that theseverance benefits provided pursuant to the Management Retention Agreementrepresent settlement in full of all outstanding obligations owed to Employee bythe Company or any subsidiary of the Company. Employee and the Company, on behalf of themselves and their respectiveheirs, agents, representatives, immediate family members, executors, assigns,directors, employees, attorneys, investors, shareholders, administrators,affiliates, divisions, subsidiaries, parents, predecessor and successorcorporations, hereby fully and forever release each other and their respectiveheirs, agents, representatives, immediate family members, executors, assigns,directors, employees, attorneys, investors, shareholders, administrators,affiliates, divisions, subsidiaries, parents, predecessor and successorcorporations and agree not to sue or otherwise institute or cause to beinstituted any legal or administrative proceedings concerning any claim, duty,obligation or cause of action relating to any matters of any kind, whetherpresently known or unknown, suspected or unsuspected, that Employee or theCompany may possess against each other from any omissions, acts or facts thathave occurred up until and including the Effective Date of this Releaseincluding, without limitation,

 

(a)                                  any and all claimsrelating to or arising from Employee’s relationship with the Company or anysubsidiary of the Company and the termination of that relationship;

 

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(b)                                 any and all claimsrelating to, or arising from, Employee’s right to purchase, or actual purchaseof shares of stock of the Company or any subsidiary of the Company, including,without limitation, any claims for fraud, misrepresentation, breach offiduciary duty, breach of duty under applicable state corporate law, andsecurities fraud under any state or federal law;

 

(c)                                  any and all claimsfor wrongful discharge of employment; termination in violation of publicpolicy; discrimination; breach of contract, both express and implied; breach ofa covenant of good faith and fair dealing, both express and implied; promissoryestoppel; negligent or intentional infliction of emotional distress; negligentor intentional misrepresentation; negligent or intentional interference withcontract or prospective economic advantage; unfair business practices;defamation; libel; slander; negligence; personal injury; invasion of privacy;false imprisonment; and conversion;

 

(d)                                 any and all claims forviolation of any federal, state or municipal statute, including, but notlimited to, Title VII of the Civil Rights Act of 1964, the Civil RightsAct of 1991, the Age Discrimination in Employment Act of 1967, the Americanswith Disabilities Act of 1990, the Fair Labor Standards Act, the EmployeeRetirement Income Security Act of 1974, The Worker Adjustment and RetrainingNotification Act, Older Workers Benefit Protection Act; the California FairEmployment and Housing Act, and the California Labor Code and all amendments toeach such Act as well as the regulations issued thereunder;

 

(e)                                  any and all claimsfor violation of the federal, or any state, constitution;

 

(f)                                    any and all claimsarising out of any other laws and regulations relating to employment oremployment discrimination; and

 

(g)                                 any and all claims forattorneys’ fees and costs.

 

Notwithstanding anything to the contrary in this Section 3,nothing in this Release is intended to relieve the Company of its obligationsunder California Labor Code section 2802 or any other federal or statestatute or common law principle of similar effect, and the release set forthunder this Section 3 does not extend to any obligations incurred under such statutes or principles orthis Release.  Employee and the Companyagree that the release set forth in this Section 3 shall otherwise be andremain in effect in all respects as a complete general release as to thematters released.

 

4.                                       Acknowledgmentof Waiver of Claims under ADEA. Employee acknowledges that he is waiving and releasing any rights he mayhave under the Age Discrimination in Employment Act of 1967 (“ADEA”) and thatthis waiver and release is knowing and voluntary.  Employee and the Company agree that this waiver and release doesnot apply to any rights or claims that may arise under the ADEA after theEffective Date of this Release. Employee acknowledges that the consideration given for this waiver andRelease is in addition to anything of value to which Employee was alreadyentitled.  Employee further acknowledgesthat he has been advised by this writing that (a) he should consult with anattorney prior to executing this Release; (b) he has at least twenty-one(21) days within which to consider this Release; (c) he has seven (7) daysfollowing the execution of this Release by the Parties to revoke the Release;and (d) this Release shall not be effective until the revocation period hasexpired.  Any revocation should be inwriting and delivered

 

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to a member of the Board of Directors byclose of business on the seventh day from the date that Employee signs thisRelease.

 

5.                                       Civil CodeSection 1542.  Employee and theCompany represent that they are not aware of any claim other than the claimsthat are released by this Release. Employee and the Company acknowledge that they have been advised bylegal counsel and are familiar with the provisions of California Civil CodeSection 1542, which provides as follows:

 

**A GENERAL RELEASE DOES NOT EXTEND TO CLAIMSWHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIMEOF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTEDHIS SETTLEMENT WITH THE DEBTOR.**

 

Employee and the Company, being aware of said code section, agree toexpressly waive any rights they may have thereunder, as well as under any otherfederal or state statute or common law principles of similar effect.

 

6.                                       No Pending orFuture Lawsuits.  Employee and theCompany represent to each other that they have no lawsuits, claims, or actionspending in their name, or on behalf of any other person or entity, against eachother or any other person or entity referred to herein.  Employee and the Company also represent toeach other that as of the Effective Date, they do not have any basis for, anddo not intend to bring any claims on their behalf or on behalf of any otherperson or entity against each other or any other person or entity referred toherein.

 

7.                                       NoCooperation.  Employee agrees thathe will not counsel or assist any attorneys or their clients in thepresentation or prosecution of any lawsuits, disputes, claims, charges, orcomplaints by any third party against the Company (including any subsidiary ofthe Company, and/or any officer, director, employee, agent, representative,shareholder or attorney of the Company or any subsidiary in his, her or itscapacity as such on behalf of the Company or any subsidiary) unless under asubpoena, court order or otherwise required by law to do so.

 

8.                                       TaxConsequences.  The Company makes norepresentations or warranties with respect to the tax consequences of thepayment of any sums to Employee under the terms of the Management RetentionAgreement and this Release.  Employeeagrees and understands that he is responsible for payment, if any, of local,state and/or federal taxes on the sums paid thereunder by the Company and anypenalties or assessments thereon.

 

9.                                       Costs.  The Parties shall each bear their own costs,expert fees, attorneys’ fees and other fees incurred in connection with thisRelease.

 

10.                                 Authority.  The Company represents and warrants that theundersigned has the authority to act on behalf of the Company and to bind theCompany and all who may claim through it to the terms and conditions of thisRelease.  Employee represents andwarrants that he has the capacity to act on his own behalf and on behalf of allwho might claim through him to bind them to

 

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the terms and conditions of thisRelease.  Each Party warrants andrepresents that there are no liens or claims of lien or assignments in law orequity or otherwise of or against any of the claims or causes of action releasedherein.

 

11.                                 No Representations.  Each Party represents that it has had theopportunity to consult with an attorney, and has carefully read and understandsthe scope and effect of the provisions of this Release.  Neither party has relied upon any representationsor statements made by the other party hereto which are not specifically setforth in this Release.

 

12.                                 Severability.  In the event that any provision hereofbecomes or is declared by a court of competent jurisdiction to be illegal,unenforceable or void, this Release shall continue in full force and effectwithout said provision.

 

13.                                 Entire Agreement.  This Release, the Management RetentionAgreement and the Confidential Information and Invention Assignment Agreementpreviously entered into by and between the Company and Employee represent theentire agreement and understanding between the Company and Employee concerningthe subject matter herein, and supersede and replace any and all prioragreements and understandings.

 

14.                                 No Oral Modification.  This Release may only be amended in writingsigned by Employee and a duly authorized officer (other than Employee) of theCompany.

 

15.                                 Effective Date.  This Release is effective eight days afterit has been signed by both Parties (the “Effective Date”).

 

16.                                 Counterparts.  This Release may be executed incounterparts, and each counterpart shall have the same force and effect as anoriginal and shall constitute an effective, binding agreement on the part ofeach of the undersigned.

 

17.                                 Voluntary Executionof Release.  This Release isexecuted voluntarily and without any duress or undue influence on the part orbehalf of the Parties hereto, with the full intent of releasing allclaims.  The Parties acknowledge that:

 

(a)                                  They have read thisRelease;

 

(b)                                 They have beenrepresented in the preparation, negotiation, and execution of this Release bylegal counsel of their own choice or that they have voluntarily declined toseek such counsel;

 

(c)                                  They understand theterms and consequences of this Release and of the releases it contains;

 

(d)                                 Theyare fully aware of the legal and binding effect of this Release.

 

4

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IN WITNESS WHEREOF, the Parties have executed this Release on therespective dates set forth below.

 

 
|   | 3Com  Corporation        |
|--------|--------------------------|
|   |                     |
|   |                     |
| Dated: |                     |   |   |
|   | By:                      |
|   |                     |
|   |                     |
|   | EMPLOYEE, an  individual |
|   |                     |
|   |                     |
| Dated: |                     |   |   |

 

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