Attached files
| file | filename |
|---|---|
| 8-K/A - FORM 8-K/A - SMITH MICRO SOFTWARE, INC. | a59575e8vkza.htm |
Exhibit 99.1
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release (“Agreement”) is made and entered into by and between
Smith Micro Software, Inc. (“Employer”) on the one hand, and Jonathan Kahn, his heirs, executors,
administrators, successors and assigns (collectively, “Employee”) on the other. Employer and
Employee agree that:
1. Last Day of Employment. Employee’s last day of employment with Employer was April
26, 2011.
2. Consideration. In consideration for signing this Agreement and compliance with the
promises made herein, Employer agrees to pay Employee a lump sum amount of Sixty-Two Thousand, Five
Hundred dollars ($62,500.00), less lawful deductions, ten (10) calendar days after the Employer’s
receipt of an original of this Agreement signed by Jonathan Kahn. Employer also agrees that, if
Employee properly and timely elects to continue medical and dental coverage under the Cigna plan in
accordance with the continuation requirements of COBRA, Employer shall reimburse the cost of the
premium for such coverage beginning on the last day of employment and ending on July 31, 2011.
Thereafter, Employee shall be entitled to elect to continue such COBRA coverage for the remainder
of the COBRA period, at Employee’s own expense, subject to the provisions of the American Recovery
and Reinvestment Act of 2009.
3. No Consideration Absent Execution of this Agreement. Employee understands and
agrees that he would not receive the amount specified in section 2 above, except for his execution
of this Agreement and the fulfillment of the promises contained in this Agreement.
4. Revocation. Employee has twenty-one (21) calendar days to consider and execute
this Agreement. Employee may revoke this Agreement for a period of seven (7) calendar days
following the day Employee signs this Agreement. Any revocation within this period must be
submitted in writing and state: “I hereby revoke my acceptance of our Agreement and General
Release.” The revocation must be personally delivered to Barbie Stevenson, Vice President, Human
Resources at Smith Micro Software, Inc., 51 Columbia, Aliso Viejo, California 92656, or mailed to
Barbie Stevenson at the same address and postmarked within seven (7) calendar days after Employee
signs this Agreement. This Agreement will not become effective or enforceable until the revocation
period has expired. If the last day of the revocation period is a Saturday, Sunday or legal
holiday in the state in which Employee was employed at the time of his last day of employment, then
the revocation period will not expire until the next following day which is not a Saturday, Sunday
or legal holiday.
5. General Release of Claims. Employee knowingly and voluntarily releases and forever
discharges Employer, its parent corporation, affiliates, subsidiaries, divisions, predecessors,
insurers, successors and assigns, and their current and former employees, attorneys, officers,
directors and agents thereof both individually and in their business capacities (collectively,
“Releasees”) of and from any and all claims, known and unknown, asserted or
unasserted, which Employee has or may have against Releasees as of the date of execution of
this Agreement, including, but not limited to, any alleged violation of:
| • | Title VII of the Civil Rights Act of 1964, as amended; | ||
| • | The Civil Rights Act of 1991; | ||
| • | The Family and Medical Leave Act; | ||
| • | Sections 1981 through 1988 of Title 42 of the United States Code, as amended; | ||
| • | The Employee Retirement Income Security Act of 1974, as amended (except for any vested benefits under any tax qualified benefit plan; | ||
| • | The Immigration Reform and Control Act, as amended; | ||
| • | The Americans with Disabilities Act of 1990, as amended; | ||
| • | The Age Discrimination in Employment Act of 1967, as amended; | ||
| • | The Older Workers Benefit Protection Act; | ||
| • | The Worker Adjustment and Retraining Notification Act, as amended; |
||
| • | The Fair Credit Reporting Act; | ||
| • | The Occupational Safety and Health Act, as amended; | ||
| • | The California Fair Employment and Housing Act, as amended; | ||
| • | The California Labor Code, except as otherwise prohibited by law; | ||
| • | The Equal Pay Act; | ||
| • | California Equal Pay Law, as amended; | ||
| • | Any other federal, state or local law, rule, regulation or ordinance; | ||
| • | Any public policy, contract, tort or common law claim; and/or | ||
| • | Any basis for recovering costs, fees, penalties or other expenses including attorneys’ fees incurred in these matters. |
Notwithstanding any of the foregoing, this Agreement does not extend to rights which as a
matter of law cannot be waived or released.
6. Waiver of Claims. Employee understands and agrees that this Agreement extends to
all claims, of every nature and kind whatsoever, known or unknown, suspected or unsuspected,
enumerated in this Agreement or otherwise. Employee understands and agrees that he may hereafter
discover facts different from or in addition to those he now knows or believes to be true in
respect to the claims, demands, damages, liabilities, actions or causes of action herein released,
and he agrees that this Agreement is and will remain in effect in all respects as a complete and
general release as to the matters to be released, notwithstanding any such different and additional
facts.
7. Waiver of Civil Code Section 1542. Employee hereby waives the provisions of
section 1542 of the California Civil Code, which provides as follows:
| A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. |
8. Indemnity. Notwithstanding anything to the contrary in this Agreement,
Employer agrees to indemnify and defend Employee from any claim, demand, action or cause of
action asserted against Employee arising within the scope of Employee’s employment with Employer
to the extent required by the bylaws of Smith Micro Software, Inc. and applicable federal or
state law.
9. Affirmations. Employee affirms that Employee: (a) has not filed or caused to be
filed any claim, complaint or action against Employer in any forum or form; (b) is not a party to
any claim, complaint or action against Employer in any forum or form; (c) has been paid all
compensation, wages, bonuses, commissions, stock, stock options and/or benefits to which Employee
may be entitled, and that no other compensation, wages, bonuses, commissions, stock, stock
options and/or benefits are due to him, except as provided in this
Agreement; (d) has no known workplace injuries or occupational diseases; (e) has been provided
and/or has not been denied any leave requested under the federal Family and Medical Leave Act or
any applicable state leave law; and (f) has received any business expenses required to be
reimbursed through the date of this Agreement.
Employee and Employer acknowledge and affirm that nothing in this Agreement is intended to or
will preclude Employee from filing a complaint and/or charge with any federal, state or local
government agency, including the Equal Employment Opportunity Commission, the U.S. Department of
Labor, the California Department of Fair Employment and Housing or the California Division of Labor
Standards Enforcement, or any other local, federal or state agency, and/or cooperating with said
agency in any investigation. Employee, however, will not be entitled to receive any relief,
recovery or monies in connection with any complaint or charge brought against Employer.
Employee affirms that Employee has returned all of Smith Micro Software, Inc.’s property,
documents, and/or any confidential information in Employee’s possession or control, with the
exception of his computer. Employee also affirms that Employee is in possession of all of
Employee’s personal property that Employee had at Smith Micro Software, Inc.’s premises and that
Smith Micro Software, Inc. is not in possession of any of Employee’s personal property.
10. Confidentiality. Employee agrees not to disclose any information regarding the
underlying facts leading up to this Agreement, or the existence or substance of this Agreement,
except to Employee’s spouse, tax advisor and/or an attorney with whom Employee chooses to consult
regarding this Agreement.
11. No Disparagement. Employee and Employer agree not to make any
disparaging or negative statements about Employer or Employee after his employment ends.
12. Waiver of Future Employment. Employee acknowledges that because of
circumstances unique to him including, but not limited to, irreconcilable differences with
Employer, he will not be qualified to hold any position with Smith Micro Software, Inc. or any of
its affiliate companies now or in the future. Employee therefore agrees to waive any right he
may have to apply for employment at any time in the future with Smith Micro Software, Inc. or its
affiliate companies. Except as provided in section 9, Employee agrees to waive any right to seek
any legal or administrative remedy of any kind should Employer refuse to hire Employee at any
time in the future.
13. Governing Law and Interpretation. This Agreement will be governed and conformed
in accordance with the laws of the state of California without regard to its conflict of laws
provision. In the event the Employee or Employer breaches any provision of this Agreement,
Employee and Employer affirm that either may institute an action specifically to enforce any term
or terms of this Agreement and/or seek any damages for breach. Should any provision of this
Agreement, other than the general release language, be declared illegal or unenforceable by any
court of competent jurisdiction and cannot be modified to be enforceable, such provision will
immediately become null and void, leaving the remainder of this Agreement in full force and effect.
Nothing in this Agreement is intended to waive or release any claims arising out of a breach of
this Agreement, and such claims are expressly omitted from the release in this Agreement.
14. No Admission of Wrongdoing. Employer and Employee agree that neither this
Agreement nor the furnishing of the consideration for this Agreement shall be deemed or construed
at any time for any purpose as an admission of wrongdoing by Releasees or evidence of any liability
or unlawful conduct of any kind.
15. Amendment. This Agreement may not be modified, altered or changed, except in
writing and signed by both parties wherein specific reference is made to this Agreement.
16. Entire Agreement. This Agreement sets forth the entire agreement between Employer
and Employee, and fully supersedes any prior agreements or understandings between them. Employee
acknowledges that he has not relied on any representations, promises or agreements of any kind made
to him in connection with his decision to accept this Agreement, except for those set forth in this
Agreement.
EMPLOYEE IS ADVISED THAT EMPLOYEE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS
AGREEMENT. EMPLOYEE IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT.
EMPLOYEE MAY REVOKE THIS AGREEMENT FOR A PERIOD OF SEVEN (7) CALENDAR DAYS FOLLOWING THE DAY
EMPLOYEE SIGNS THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 4 OF THIS AGREEMENT.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR
OTHERWISE, MADE TO THIS AGREEMENT DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL UP TO
TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT
INTENDING TO WAIVE,
SETTLE AND RELEASE ALL CLAIMS EMPLOYEE HAS OR MIGHT HAVE AGAINST RELEASEES.
The parties knowingly and voluntarily sign this Agreement and General Release as of the
date(s) set forth below:
| Smith Micro Software, Inc. |
||||
| By: | /s/ Barbie Stevenson | |||
| Barbie Stevenson | ||||
| Vice President, Human Resources | ||||
| Date: | May 13, 2011 | |||
| /s/ Jonathan Kahn | ||||
| Jonathan Kahn | ||||
Date: May 9, 2011 |
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