EXHIBIT 10.51
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SETTLEMENT, RELEASE, AND SEVERANCE AGREEMENT
This Settlement, Release and Severance Agreement (hereinafter "Agreement") is
made and entered into by and between Xxxxxxx X. Xxxxxxxx (hereinafter referred
to as the "Releasor" or "Employee") and Extended Systems Incorporated, a
corporation, and its officers, principals, agents, employees, directors,
representatives, insurers, and all other persons or entities acting for, by or
through any of them (individually and/or collectively referred to herein as the
"Releasees").
A. Whereas, the Releasor's date of hire with Extended Systems Incorporated
(the "Company") was November 8, 1988
B. Whereas, the Releasor's active employment with the Company will be
terminated on March 19, 2003.
C. Whereas, the Company has agreed to pay severance in the amount of $69,018
(less taxes) and $1075 in lieu of fringe benefits to Releasee in exchange
and as consideration for execution by Releasor of this Agreement.
Now therefore, in consideration of the agreements and covenants contained in
this Settlement, Release, and Indemnity Agreement, it is hereby understood and
agreed by and between the parties hereto as follows:
1. That in consideration of severance payment in the amount of $69,018(less
taxes) plus $1075 in lieu of fringe benefits the Releasor does hereby
release, acquit, and forever discharge the Releasees, individually and
collectively, of and from any and all claims, actions, causes of actions,
demands, rights, damages, costs, expenses, and compensation whatsoever
which the Releasor now has or may hereafter acquire, arising out of or in
any way connected with any and all known and unknown, foreseen and
unforeseen rights, claims, and damages resulting from or in any way arising
out of Releasor's employment with Releasee. This release and discharge by
the Releasor (on behalf of Releasor, heirs, spouses, and assigns) in favor
of the Releasees includes, but is not limited to, all claims and damages
allowable by law or equity for any and all events, occurrences, and
circumstances occurring by and between the Releasor and the Releasees
arising from or in any way connected with Releasor's employment with the
Company.
2. This release applies to all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, causes
of action, suits, rights demands, costs, losses, debts and expenses
(including attorney's fees and costs actually incurred) of any nature
whatsoever known or unknown, suspected or unsuspected, including, but not
limited to, rights under the Age Discrimination in Employment Act of 1967,
as amended, Title VII of the Civil Rights Act of 1964, as amended, and
other federal, state, or local laws, including without limitation common
law prohibiting discrimination, claims growing out of any legal
restrictions on the Company's right to terminate employees ("Claim" or
"Claims"), which Releasor now has, owns or holds, or claims to have owned
or held, or which Releasor at any time hereinafter may have owned or held
or claimed to have owned or held against the Company.
To comply with the Older Workers Benefit Protection Act of 1990, this
Settlement, Release and Severance Agreement and has advised Employee of the
legal requirements of this Act and fully incorporates the legal
requirements by reference into this Agreement as follows:
1. This Agreement is written in laymen's terms, and the Employee
understands and comprehends its terms;
2. Employee has been advised of his/her right to consult an attorney to
review the Agreement, and has had the benefit of an attorney
throughout the settlement process;
3. Employee does not waive the rights or claims that may arise after the
date the waiver is executed;
4. Employee is receiving consideration beyond anything of value to which
he/she is already entitled;
5. Employee has been given at least forty-five (45) days within which to
consider this settlement agreement;
6. Employee has been advised to consult with an attorney prior to
executing this agreement;
7. For a period of seven (7) days after the execution of this Agreement
Releasor may cancel the Agreement upon written notice to Releasees.
8. Employee has been advised of all individuals by job title and age who
have been selected for layoff or who are eligible for the Plan and the
job title and ages of all individuals in the same job classification
or organizational unit who are not eligible for the program. A
complete list of these individuals by job title and age is attached
hereto as Attachment I.
3. That it is understood and agreed by the Releasor and the Releasees that the
terms and conditions of this Agreement are strictly confidential and shall
not be revealed to any one other than legal counsel representing the
parties, tax preparers or tax consultants, or such other individuals or
entities agreed to by the parties in writing, or by order of a court of
competent jurisdiction. The parties to this Agreement further agree that
these confidentiality provisions are significant and material provisions of
this Agreement and are to be strictly adhered to and enforced.
NONDISCLOSURE BY RELEASOR. Releasor agrees that he or she shall never,
directly or indirectly, use, disseminate, disclose, lecture upon or publish
any information concerning financial information, patents, copyrights,
inventions, trade secrets, technical processes, methods, formulas,
techniques, proprietary rights, products, services, and technical
information of Extended Systems to any third party or to the public without
the written consent of Extended Systems. Releasor acknowledges and agrees
that he can be held liable to Extended Systems for damages caused by any
improper disclosure of Extended Systems information. This shall not
prohibit a discussion of information that has been previously distributed
and is generally known in the computer-related industry.
IMPROVEMENTS TO ESI PRODUCTS AND RELATED INVENTIONS. It is agreed that
during the term of this Agreement any inventions or improvements of ESI
products, processes, or programs conceived, designed or developed by
Releasor that relate to the subject matter of materials supplied or
products manufactured by ESI or that relate to the research and development
of ESI or result from any task assigned to Releasor by ESI shall by
property of ESI and shall be communicated by Releasor to ESI without delay.
Releasor agrees to execute any necessary documents to establish ESI's
ownership of the matters referred to in this paragraph or to transfer
ownership from Releasor to Extended Systems. All matters referred to in
this paragraph shall be protected against nondisclosure in the manner as
CONFIDENTIAL INFORMATION under this Agreement.
4. Releasor also agrees that he will not to serve anywhere in the world in any
capacity whatsoever, without the prior written consent of the Releasee at
its absolute discretion, and whether directly or indirectly and whether on
Releasor's own behalf or on behalf of any other person, firm, company or
other organization or jointly:
a) for a period of (6) months from the Termination Date seek or solicit
any business order, instruction, or custom from any Customer in
connection with the Restricted Business. Restricted Business means the
design, development, manufacture, production, marketing and sale or
delivery of software programs, products or services relating to the
server synchronization of mobile information devices, universal mobile
connectivity, or mobile data management devices. This includes work
done for companies such as Pumatech; Excellenet; Sybase, and
Synchrologic;
b) for a period of (6) months from the Termination Date engage in the
Restricted Business with any customer;
c) for a period of (6) months from the Termination date, carry out,
engage and/or accept employment in any business or trade which is
competitive with the Restricted Business except for the ownership for
investment purposes of no more than 5% of the issued ordinary shares
of any company listed on any stock exchange.
5. Releasor also agrees that for a period of six (6) months after the
termination of their employment with Extended Systems Incorporated, that
they shall not induce or attempt to induce any employee, agent or
consultant of Extended Systems Incorporated or any subsidiary to terminate
his or her association with Extended Systems Incorporated or any
affiliates. Extended Systems Incorporated and Releasor agree that the
provisions of this paragraph contain restrictions that are not greater than
necessary to protect the interests of Extended Systems Incorporated. In the
event of the breach or threatened breach by Releasor of this paragraph,
Extended Systems Incorporated, in addition to all other remedies available
to it at law or in equity, will be entitled to seek injunctive relief
and/or specific performance to enforce this paragraph.
6. That it is understood and agreed by the Releasor that no promise,
inducement or agreement not stated herein has been made to him or her and
that this Agreement contains the entire agreement among the parties hereto,
and that the terms of this Agreement are contractual and not mere recitals.
7. That it is understood and agreed by the Releasor that this Agreement is
entered into in the state of Idaho and shall be construed and interpreted
in accordance with Idaho law.
8. Releasor also certifies that they do not have in their possession or
control, and that they have not taken or will not take from the Company
premises, any Company property. Company property includes, but is not
limited to, products, tools, inventory, or proprietary data or copies
thereof including engineering notebooks, patent applications, technical
reports, or other documents which are not generally available to the
public. Releasor will retain all confidential information in trust and
confidence for Extended Systems Incorporated and not disclose or discuss it
with anyone or use it for personal gain. Releasor recognizes that these
obligations continue beyond termination until the information becomes
public or Extended Systems Incorporated grants written permission to use or
disclose it.
9. Releasor further understands and agrees that all work they have done to
this point will be turned over to the company prior to their termination
date.
NOTE: EMPLOYEE IS HEREBY ADVISED OF HIS/HER RIGHT TO RESCIND AND NULLIFY THIS
RELEASE AND SETTLEMENT AGREEMENT, WHICH RIGHT MUST BE EXERCISED, IF AT ALL,
WITHIN SEVEN (7) DAYS OF THE DATE OF EMPLOYEE'S SIGNATURE. EMPLOYEE MUST REVOKE
THIS RELEASE BY LETTER TO RELEASEE WITHIN SEVEN (7) DAYS. NO CONSIDERATION SHALL
BE CONVEYED UNTIL SUCH TIME PERIOD HAS EXPIRED.
DATED as of March 3rd, 2003.
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Month Day
/s/ Xxxxxxx X. Xxxxxxxx
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Employee and Releasor
