**Exhibit 10.4**

 

**3COM CORPORATION**

 

**MANAGEMENT RETENTION AGREEMENT**

 

This Management Retention Agreement (the “Agreement”) is made andentered into by and between Nick Ganio (the “Employee”) and 3Com Corporation(the “Company”).

 

R E C I T A L S

 

A.            It is expected thatthe Company from time to time will consider the possibility of an acquisitionby another company or other change of control. The Board of Directors of the Company (the “Board”) recognizes that suchconsideration can be a distraction to the Employee and can cause the Employeeto consider alternative employment opportunities.  The Board has determined that it is in the best interests of theCompany and its stockholders to assure that the Company will have the continueddedication and objectivity of the Employee, notwithstanding the possibility,threat or occurrence of a Change of Control of the Company.

 

B.            The Board believesthat it is in the best interests of the Company and its stockholders to providethe Employee with an incentive to continue his employment and to motivate theEmployee to maximize the value of the Company upon a Change of Control for thebenefit of its stockholders.

 

C.            The Board believesthat it is imperative to provide the Employee with severance benefits uponEmployee’s termination of employment within 3 months prior to or within 12months following a Change of Control which provides the Employee with enhancedfinancial security and provides incentive and encouragement to the Employee toremain with the Company notwithstanding the possibility of a Change of Control.

 

D.            Certain capitalizedterms used in the Agreement are defined in Section 5 below.

 

The parties hereto agree as follows:

 

# 1.     Term of Agreement.  This Agreement shall terminate upon the datethat all obligations of the parties hereto with respect to this Agreement havebeen satisfied.

 

# 2.     At-Will Employment.  The Company and the Employee acknowledgethat the Employee’s employment is and shall continue to be at-will, as definedunder applicable law, and may be terminated by either party at any time, withor without cause.  If the Employee’semployment terminates for any reason, including (without limitation) anytermination prior to a Change of Control, the Employee shall not be entitled toany payments, benefits, damages, awards or compensation other than as providedby this Agreement, or as may otherwise be

 

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# available inaccordance with the Company’s established employee plans or pursuant to otherwritten agreements with the Company.

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# 3.     Change of Control Severance Benefits.

 

# (a)  Involuntary Termination other than forCause, Death or Disability or Voluntary Termination for Good Reason WithinThree (3) Months Prior to or Within Twelve (12) Months Following A Change of Control.  If, within three (3) months prior to orwithin twelve (12) months following a Change of Control, Employee’s employmentis terminated (i) involuntarily by the Company other than for Cause, death orDisability or (ii) by the Employee pursuant to a Voluntary Termination for GoodReason, then, subject to Employee entering into a standard form of mutualrelease of claims with the Company in substantially the form attached hereto asExhibit A, the Company shall provide Employee with the following benefits uponsuch termination:

 

(i)            Lump-Sum Payment. A lump-sum cash payment in an amount equal to one hundred percent (100%)of the Employee’s Annual Compensation;

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(ii)           Continued Employee Benefits. The Company shallprovide Company-paid health, dental, vision, long-term disability and lifeinsurance 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-Rated Bonus Payment.  A lump-sum cash payment equal to 100% of such Employee’s targetbonus as in effect for the fiscal year in which the Change of Control occurs,pro-rated by multiplying such bonus amount by a fraction, the numerator ofwhich shall be the number of days prior to occurrence of the Change of Controlduring such fiscal year, and the denominator of which shall be three-hundredand sixty-five.

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(iv)          Equity Compensation Accelerated Vesting.  One hundred percent (100%) of the unvestedportion of any stock option, restricted stock or other Company equitycompensation held by the Employee shall automatically be accelerated in full soas to become 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)           Extension of Stock Option Post-TerminationExercisability.  Thepost-termination exercise period of any outstanding Company stock options heldby Employee shall be extended to the lesser of (A) one year from the date ofEmployee’s termination, or (B) the original option term.

 

(b)  Voluntary Resignation; Termination For Cause.  If the Employee’s employment terminates byreason of the Employee’s voluntary resignation (and is not a VoluntaryTermination for Good Reason), or if the Employee is terminated for Cause, thenthe Employee shall not be entitled to receive severance or other benefitsexcept for those (if any) as may then be established under the Company’s thenexisting severance and benefits plans or pursuant to other written agreementswith the Company.

 

(c)  Disability; Death. If the Employee’s employment with the Company terminates as a result ofthe Employee’s Disability, or if Employee’s employment is terminated due to thedeath of the Employee, then the Employee shall not be entitled to receiveseverance or other benefits except for those (if any) as may then beestablished under the Company’s then existing severance and benefits plans orpursuant to other written agreements with the Company.

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(d)  Termination Apart from Change of Control.  In the event the Employee’s employment isterminated for any reason, either prior to three (3) months before theoccurrence of a Change of Control or after the twelve (12) month periodfollowing a Change of Control, then the Employee shall be entitled to receiveseverance and any other benefits only as may then be established under theCompany’s existing severance and benefits plans or pursuant to other writtenagreements with the Company.

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# 4.     Golden Parachute Excise Taxes.

 

(a)  Parachute Payments of Less 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 InternalRevenue Code of 1986, as amended (the “Code”), (b) would be subject to theexcise tax imposed by Section 4999 of the Code, and (c) the aggregatevalue of such parachute payments, as determined in accordance withSection 280G of the Code and the proposed Treasury Regulations thereunder(or the final Treasury Regulations, if they have then been adopted) is lessthan the product obtained by multiplying 3.59 by Employee’s “base amount” withinthe meaning of  CodeSection 280G(b)(3), then such benefits shall be reduced to the extentnecessary (but only to that extent) so that no portion of such benefits will besubject to excise tax under Section 4999 of the Code.

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(b)  Parachute Payments 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

 

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Company sufficient to pay suchexcise tax, plus (ii) an additional payment from the Company sufficient topay the excise tax and federal and state income and employment taxes arisingfrom the payments made by the Company to Employee pursuant to this sentence.

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# (c)  280G Determinations.    Unless the Company and the Employeeotherwise agree in writing, the determination of Employee’s excise taxliability 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 reasonable, good faith interpretationsconcerning the application of Sections 280G and 4999 of the Code.  The Company and the Employee shall furnishto the Accountants such information and documents as the Accountants mayreasonably request in order to make a determination under this Section.  The Company shall bear all costs theAccountants may reasonably incur in connection with any calculations contemplatedby this Section 4.

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# 5.     Definition of Terms.  The following terms referred to in thisAgreement shall have the following meanings:

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(a)  Annual Compensation. “Annual Compensation” shall mean an amount equal to the sum of(i) the Employee’s Company annual base salary as in effect immediatelypreceding the Change of Control, and (ii) 100% of the Employee’s TargetBonus.

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(b)  Target Bonus. “Target Bonus” shall mean Employee’s annual bonus, assuming 100% “ontarget” satisfaction of any objective or subjective performance milestones.

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(c)  Cause.  “Cause”shall mean (i) an act of personal dishonesty taken by the Employee inconnection with his responsibilities as an employee and intended to result insubstantial personal enrichment of the Employee, (ii) Employee beingconvicted of a felony, (iii) a willful act by the Employee whichconstitutes gross misconduct and which is injurious to the Company,(iv) following delivery to the Employee of a written demand forperformance from the Company which describes the basis for the Company’s reasonablebelief that the Employee has not substantially performed his duties, continuedviolations by the Employee of the Employee’s obligations to the Company whichare demonstrably willful and deliberate on the Employee’s part.

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(d)  Change of Control. “Change of Control” means the occurrence of any of the following events:

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(i)            Any Person becomes the “beneficial owner” (as defined inRule 13d-3 under said Act), directly or indirectly, of securities of theCompany representing fifty percent (50%) or more of the total voting powerrepresented by the Company’s then outstanding voting securities; or

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(ii)           The consummation of the sale or disposition by the Companyof all or substantially all the Company’s assets; or

 

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(iii)          The consummation of a merger or consolidation of theCompany with any other corporation, other than a merger or consolidation whichwould result in the voting securities of the Company outstanding immediatelyprior thereto continuing to represent (either by remaining outstanding or bybeing converted into voting securities of the surviving entity) at least fiftypercent (50%) of the total voting power represented by the voting securities ofthe Company or such surviving entity outstanding immediately after such mergeror consolidation; or

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(iv)          A change in the composition of the Board occurring within atwo-year period, as a result of which fewer than a majority of the directorsare Incumbent Directors.  “IncumbentDirectors” shall mean directors who either (A) are directors of theCompany as of the date upon which this Agreement was entered into, or(B) are elected, or nominated for election, to the Board with theaffirmative votes of at least a majority of those directors whose election ornomination was not in connection with any transaction described in subsections(i), (ii), or (iii) above, or in connection with an actual or threatened proxycontest relating to the election of directors to the Company.

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(e)  Disability. “Disability” shall mean that the Employee has been unable to perform hisCompany duties as the result of his incapacity due to physical or mentalillness, and such inability, at least 26 weeks after its commencement, isdetermined to be total and permanent by a physician selected by the Company orits insurers and acceptable to the Employee or the Employee’s legalrepresentative (such Agreement as to acceptability not to be unreasonablywithheld).  Termination resulting fromDisability may only be effected after at least 30 days’ written notice by theCompany 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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(f)  Person.  “Person”shall have the same meaning accorded to such term in Sections 13(d) and14(d) of the Securities Exchange Act of 1934, as amended.

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(g)  Voluntary Termination for Good Reason.  “Voluntary Termination for Good Reason”shall mean the Employee voluntarily resigns after the occurrence of any of thefollowing: (i) without the Employee’s express written consent, a materialreduction of the Employee’s duties, title, authority or responsibilities,relative to the Employee’s duties, title, authority or responsibilities as ineffect immediately prior to such reduction, or the assignment to Employee ofsuch reduced duties, title, authority or responsibilities; provided, however,that a reduction in duties, title, authority or responsibilities solely byvirtue of the consummation of a Change of Control (as, for example, when theCompany’s **[Insert Job Title]**remains as such following a Change of Control) shall not by itself constitutegrounds for a “Voluntary Termination for Good Reason;” (ii) without theEmployee’s express written consent, a material reduction of the facilities andperquisites (including office space and location) available to the Employeeimmediately prior to such reduction, other than a reduction generallyapplicable to all senior management of the Company; (iii) a reduction bythe Company in the base salary of the Employee as in effect immediately priorto such reduction; (iv) a material reduction by the Company in theaggregate level of employee benefits, including bonuses, to which the Employeewas entitled immediately prior to such reduction with the result that theEmployee’s aggregate benefits package is materially reduced (other than areduction

 

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that generally applies toCompany employees); (v) the relocation of the Employee to a facility or alocation more than thirty-five (35) miles from the Employee’s then presentlocation, without the Employee’s express written consent; or (vi) any actor set of facts or circumstances which would, under California case law orstatute constitute a constructive 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 of itssubsidiaries’) employ for any reason or interfere in any other manner with theemployment relationships at the time existing between the Company (or any ofits subsidiaries) and its current or prospective employees.

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# 7.     Successors.

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(a)  Company’s Successors. Any successor to the Company (whether direct or indirect and whether bypurchase, merger, consolidation, liquidation or otherwise) to all orsubstantially all of the Company’s business and/or assets shall assume theobligations under this Agreement and agree expressly to perform the obligationsunder this Agreement in the same manner and to the same extent as the Companywould be required to perform such obligations in the absence of asuccession.  For all purposes under thisAgreement, the term “Company” shall include any successor to the Company’sbusiness and/or assets which executes and delivers the assumption agreementdescribed in this Section 7(a) or which becomes bound by the terms of thisAgreement by operation of law.

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(b)  Employee’s Successors. The terms of this Agreement and all rights of the Employee hereundershall inure to the benefit of, and be enforceable by, the Employee’s personalor legal representatives, executors, administrators, successors, heirs,distributees, devisees and legatees.

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# 8.     Notice.

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(a)  General.  Noticesand all other communications contemplated by this Agreement shall be in writingand shall be deemed to have been duly given when personally delivered or oneday following mailing via Federal Express or similar overnight courierservice.  In the case of the Employee,mailed notices shall be addressed to him at the home address which he mostrecently communicated to the Company in writing.  In the case of the Company, mailed notices shall be addressed toits corporate headquarters, and all notices shall be directed to the attentionof its Secretary.

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(b)  Notice of Termination. Any termination by the Company for Cause or by the Employee pursuant toa Voluntary Termination for Good Reason shall be communicated by a notice oftermination to the other party hereto given in accordance withSection 8(a) of this Agreement. Such notice shall indicate the specific termination provision in thisAgreement relied upon, shall set forth in reasonable detail the facts andcircumstances claimed to provide a basis for termination under the provision soindicated, and shall specify the termination date (which shall be not more than30 days after the giving of such notice). The failure by the Employee to include in the notice any fact orcircumstance which contributes to a showing of Voluntary Termination for GoodReason

 

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shall not waive any right ofthe Employee hereunder or preclude the Employee from asserting such fact orcircumstance in enforcing his rights hereunder.

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# 9.     Miscellaneous Provisions.

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(a)  No Duty to Mitigate. The Employee shall not be required to mitigate the value of any benefitscontemplated by this Agreement, nor shall any such benefits be reduced by anyearnings or benefits that the Employee may receive from any other source.

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(b)  Waiver.  Noprovision of this Agreement shall be modified, waived or discharged unless themodification, waiver or discharge is agreed to in writing and signed by theEmployee and by two authorized officers of the Company (other than theEmployee).  No waiver by either party ofany breach of, or of compliance with, any condition or provision of thisAgreement by the other party shall be considered a waiver of any othercondition or provision or of the same condition or provision at another time.

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(c)  Whole Agreement. No agreements, representations or understandings (whether oral orwritten and whether express or implied) which are not expressly set forth inthis Agreement have been made or entered into by either party with respect tothe subject matter hereof.  ThisAgreement represents the entire understanding of the parties hereto withrespect to the subject matter hereof and supersedes all prior arrangements andunderstandings regarding same.

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(d)  Choice of Law.  Thevalidity, interpretation, construction and performance of this Agreement shallbe governed by the laws of the State of California.

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(e)  Severability.  Theinvalidity or unenforceability of any provision or provisions of this Agreementshall not affect the validity or enforceability of any other provision hereof,which shall remain in full force and effect.

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(f)  Counterparts.  ThisAgreement may be executed in counterparts, each of which shall be deemed anoriginal, but all of which together will constitute one and the sameinstrument.

 

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IN WITNESS WHEREOF, each of theparties has executed this Agreement, in the case of the Company by its dulyauthorized officers.

 

 
| **COMPANY**  |   | **3COM CORPORATION** |
|--------------|--------|----------------------|
|         |   |                 |
|         | By:    | /s/ Bruce L. Claflin |   |
|         |   | BRUCE L. CLAFLIN     |
|         |   |
|         | Title: | President & CEO  |
|         |   |
|         |   |                 |
| **EMPLOYEE** | By:    | /s/ Nick Ganio       |   |
|         |   | **Nick Ganio**       |
|              |        |                      |  |  |

 

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**EXHIBIT A**

 

**MUTUAL RELEASE OF CLAIMS**

 

This MutualRelease of Claims (“Release”) is made by and between 3Com Corporation, 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.     Confidential Information.  Employee shall continue to maintain theconfidentiality of all confidential and proprietary information of the Companyand shall  continue to comply with theterms and conditions of the Confidential Information and Invention AssignmentAgreement previously entered into by and between the Company and Employee.

 

# 2.     Payment of Salary.  The Company represents and Employeeacknowledges and represents that the Company has paid (or will pay pursuant tothe terms of the applicable plan or program and the Management RetentionAgreement) all salary, wages, bonuses, commissions, accrued vacation andexpense reimbursements and any and all other benefits due to Employee throughthe date of signing of this Release.

 

# 3.     Release of Claims.  Employee agrees that the severance benefitsprovided pursuant to the Management Retention Agreement represent settlement infull of all outstanding obligations owed to Employee by the Company or anysubsidiary of the Company.  Employee andthe Company, on behalf of themselves and their respective heirs, agents,representatives, immediate family members, executors, assigns, directors,employees, attorneys, investors, shareholders, administrators, affiliates,divisions, subsidiaries, parents, predecessor and successor corporations,hereby fully and forever release each other and their respective heirs, agents,representatives, immediate family members, executors, assigns, directors,employees, attorneys, investors, shareholders, administrators, affiliates,divisions, subsidiaries, parents, predecessor and successor corporations andagree not to sue or otherwise institute or cause to be instituted any legal oradministrative proceedings concerning any claim, duty, obligation or cause ofaction relating to any matters of any kind, whether presently known or unknown,suspected or unsuspected, that Employee or the Company may possess against eachother from any omissions, acts or facts that have occurred up until andincluding the Effective Date of this Release including, without limitation,

 

(a)  any and all claims relating to or arisingfrom Employee’s relationship with the Company or any subsidiary of the Companyand the termination of that relationship;

 

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# (b)  any and all claims relating to, or arisingfrom, Employee’s right to purchase, or actual purchase of shares of stock ofthe Company or any subsidiary of the Company, including, without limitation,any claims for fraud, misrepresentation, breach of fiduciary duty, breach ofduty under applicable state corporate law, and securities fraud under any stateor federal law;

 

(c)  any and all claims for wrongful discharge ofemployment; termination in violation of public policy; discrimination; breachof contract, both express and implied; breach of a covenant of good faith andfair dealing, both express and implied; promissory estoppel; negligent orintentional infliction of emotional distress; negligent or intentionalmisrepresentation; negligent or intentional interference with contract orprospective economic advantage; unfair business practices; defamation; libel;slander; negligence; personal injury; invasion of privacy; false imprisonment;and conversion;

 

(d)  any and all claims for violation of anyfederal, 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 withDisabilities Act of 1990, the Fair Labor Standards Act, the Employee RetirementIncome Security Act of 1974, The Worker Adjustment and Retraining NotificationAct, Older Workers Benefit Protection Act; the California Fair Employment andHousing Act, and the California Labor Code and all amendments to each such Actas well as the regulations issued thereunder;

 

(e)  any and all claims for violation of thefederal, or any state, constitution;

 

(f)  any and all claims arising out of any otherlaws and regulations relating to employment or employment discrimination; and

 

(g)  any and all claims for attorneys’ fees andcosts.

 

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.     Acknowledgment of Waiver of Claims underADEA.  Employee acknowledges that heis waiving and releasing any rights he may have under the Age Discrimination inEmployment Act of 1967 (“ADEA”) and that this waiver and release is knowing andvoluntary.  Employee and the Companyagree that this waiver and release does not apply to any rights or claims thatmay arise under the ADEA after the Effective Date of this Release.  Employee acknowledges that the considerationgiven for this waiver and Release is in addition to anything of value to whichEmployee was already entitled.  Employeefurther acknowledges that he has been advised by this writing that (a) heshould consult with an attorney prior to executing this Release; (b) hehas at least twenty-one (21) days within which to consider this Release; (c) hehas seven (7) days following the execution of this Release by the Parties torevoke the Release; and (d) this Release shall not be effective until therevocation period has expired.  Anyrevocation should be in writing and delivered

 

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to a member of the Board ofDirectors by close of business on the seventh day from the date that Employeesigns this Release.

 

# 5.     Civil Code Section 1542.  Employee and the Company represent that theyare not aware of any claim other than the claims that are released by thisRelease.  Employee and the Companyacknowledge that they have been advised by legal counsel and are familiar withthe provisions of California Civil Code Section 1542, which provides asfollows:

 

**AGENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW ORSUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IFKNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS 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 or Future Lawsuits.  Employee and the Company represent to eachother that they have no lawsuits, claims, or actions pending in their name, oron behalf of any other person or entity, against each other or any other personor entity referred to herein.  Employeeand the Company also represent to each other that as of the Effective Date,they do not have any basis for, and do not intend to bring any claims on theirbehalf or on behalf of any other person or entity against each other or anyother person or entity referred to herein.

 

# 7.     No Cooperation.  Employee agrees that he will not counsel orassist any attorneys or their clients in the presentation or prosecution of anylawsuits, disputes, claims, charges, or complaints by any third party againstthe Company (including any subsidiary of the Company, and/or any officer,director, employee, agent, representative, shareholder or attorney of theCompany or any subsidiary in his, her or its capacity as such on behalf of theCompany or any subsidiary) unless under a subpoena, court order or otherwiserequired by law to do so.

 

# 8.     Tax Consequences.  The Company makes no representations orwarranties with respect to the tax consequences of the payment of any sums toEmployee under the terms of the Management Retention Agreement and thisRelease.  Employee agrees andunderstands that he is responsible for payment, if any, of local, state and/orfederal taxes on the sums paid thereunder by the Company and any penalties orassessments thereon.

 

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

 

# 10.   Authority.  The Company represents and warrants that the undersigned has theauthority to act on behalf of the Company and to bind the Company and all whomay claim through it to the terms and conditions of this Release.  Employee represents and warrants that he hasthe capacity to act on his own behalf and on behalf of all who might claimthrough him to bind them to the terms

 

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# and conditionsof this Release.  Each Party warrantsand represents that there are no liens or claims of lien or assignments in lawor equity or otherwise of or against any of the claims or causes of actionreleased herein.

 

# 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 anyrepresentations or statements made by the other party hereto which are notspecifically set forth 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 Execution of Release.  This Release is executed voluntarily andwithout any duress or undue influence on the part or behalf of the Partieshereto, with the full intent of releasing all claims.  The Parties acknowledge that:

 

(a)  They have read this Release;

 

(b)  They have been represented in thepreparation, negotiation, and execution of this Release by legal counsel oftheir own choice or that they have voluntarily declined to seek such counsel;

 

(c)  They understand the terms and consequencesof this Release and of the releases it contains;

 

(d)  They are fully aware of the legal and binding effect of thisRelease.

 

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IN WITNESS WHEREOF, the Partieshave executed this Release on the respective dates set forth below.

 

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

 

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