EXHIBIT 10.53
-------------
SETTLEMENT, RELEASE, AND SEVERANCE AGREEMENT
This Settlement, Release and Severance Agreement (hereinafter "Agreement") is
made and entered into by and between Xxxxxxx Xxxxxx (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 April 17, 2000.
B. Whereas, the Releasor's active employment with the Company will be
terminated without cause on June 30, 2003 (the "Termination Date").
C. Whereas, the Company has agreed to pay severance in the total amount of
$70,002 (less taxes) which represents six months of base pay plus $7760.16
in lieu of fringe benefits and $18,000 in lieu of relocation benefits to
Releasee in exchange and as consideration for execution by Releasor of this
Agreement. In addition, as per employment agreement, employee will be paid
for all accrued but unused vacation time as of June 30, 2003 at a daily
rate of $537.65.
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 $70,002 (less
taxes), which represents six months of base pay plus $7760.16 in lieu of
fringe benefits and $18,000 in lieu of relocation 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 up to and including the Termination
Date.
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. Releasor has been
given at least fourteen (14) days within which to consider this settlement
agreement.
3. That it is understood and agreed by the Releasor and the Releasees that, as
additional consideration for this Agreement, the proprietary and
confidential information regarding the Company obtained by Releasor during
his employment with the Company and 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.
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.
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 on or before the date 6 months after the Termination
Date that relate to the subject matter of materials supplied or products
manufactured by ESI or that relate to the research and development of ESI
shall be 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.
a) Releasor also agrees that for a period of (6) months after the
Termination Date he shall not seek or solicit any business from any
Customer in connection with the Restricted Business and in way that
has a negative business impact for Extended Systems. 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.
b) In addition, Releasor also agrees that for a period of (6) months from
the Termination date, he shall not carry out, engage and/or accept
employment in any business or trade which is competitive with Exended
Systems in 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. This includes work done
for companies such as Pumatech; Excellenet; Sybase, and Synchrologic;
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
DATED as of June 3rd, 2003. /s/ Xxxxxxx Xxxxxx
Month Day -------------------------
Employee and Releasor
DATED as of June 4th, 2003. /s/ Xxxxxx X. Xxxxxxx
Month Day -------------------------
Extended Systems
