EXHIBIT 10.56
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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 XXXXX 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 October 27, 2003;
B. Whereas, the Releasor's active employment with the Company was terminated
on September 7, 2004;
C. Whereas, Releasor has agreed to be paid $8,000 to continue to support the
Novell contract negotiations through September 30, 2004;
D. Whereas, Releasor's employment with the Company will terminate effective
September 7, 2004 ("Termination Date");
E. Whereas, the Company has agreed to pay $21,476 for commissions earned
through September 30, 2004 per the FYO4 Commission Plan.
F. Whereas, the Company has agreed to pay, upon the effective date of this
Agreement, the following severance (less applicable withholdings) in
exchange and as consideration for Releasor's execution of this Agreement:
1. THREE (3) MONTHS OF BASE SALARY ($32,500);
2. $27,750 of variable compensation;
3. $3,000 in lieu of fringe benefits;
4. All expenses have been reimbursed to the Company from the Employee
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 for the severance payment in the amount described in
Paragraph F above, the Releasor, on his behalf and on behalf of his heirs,
spouse and assigns, 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, known or unknown, which the Releasor now has or
may hereafter acquire, arising out of or in any way connected with,
resulting from or in any way arising out of Releasor's employment with
Releasee or the termination thereof.
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, claims under the Age Discrimination in Employment Act of 1967,
as amended, Title VII of the Civil Rights Act of 1964, as amended, and/or
any other federal, state, or local laws, including without limitation laws
prohibiting discrimination in employment, claims arising out of any legal
restrictions on the Company's right to terminate employees, tort claims,
contract claims, claims for wages or any other statutory or common law
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 acknowledges
that he has been paid all compensation, including accrued vacation leave to
which he is entitled. Further, Releasor shall not accrue any benefits
subsequent to September 7, 2004.
In compliance with the Older Workers Benefit Protection Act of 1990, by
this Agreement, Releasor has been advised of the following legal
requirements of this Act which are incorporated herein by reference:
1. This Agreement is written in laymen's terms, Releasor understands and
comprehends its terms and Releasor is voluntarily and knowingly
agreeing to its terms;
2. Employee has been advised in writing to consult an attorney prior to
executing this Agreement, and has had the benefit of an attorney to
the extent desired throughout the settlement process;
3. Employee does not release any rights or claims that may arise after
the effective date of this Agreement;
4. Employee has been given (21) days to consider this Agreement from the
date of signing (although he may choose to voluntarily execute this
Agreement earlier); (a) employee has seven (7) days following his
execution of this Agreement to revoke the Agreement; and (b) this
Agreement shall not be effective until the date upon which the
revocation period has expired, which shall be the eighth day after
this Agreement is executed by the employee and the Company.
3. Releasor acknowledges and agrees that effective September 7, 2003, he is no
longer authorized to act on behalf of the Company and is not authorized to
incur any expenses, obligations or liabilities on behalf of the Company.
4. 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. Employee will have 30 days from the
signing of this agreement to submit any expenses occurred through September
30, 2004.
5. Releasor also agrees that for a period of six (6) months after the
termination of his employment with Extended Systems Incorporated, he 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. If any employee leaves the Company
without being recruited by the Releasor, the Releasor will have the right
to contact the employee to discuss employment.
6. 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. 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 he does not have in his possession or control,
and that he has 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 will 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. A party's Confidential Information shall not include
information that: (a) is or becomes a part of the public domain through no
act or omission of the Releasor; (b) was in the receiving party's lawful
possession prior to the disclosure and had not been obtained by the
receiving party either directly or indirectly from the Releasor; (c) is
lawfully disclosed to the receiving party by a third party without
restriction on disclosure; or (d) is independently developed by the
receiving party. Releasor shall not disclose the results of any benchmark
tests or other evaluation to any third party without ESI's prior written
approval.
9. Notwithstanding the foregoing release, the employee shall retain the
following rights:
(a) Rights to indemnification as an office or director pursuant to the
articles of incorporation or code of regulations of the Company for lawful
actions in the proper scope and course of employment:
(b) Rights to payment under the Company's FYO4 salary can Commission Plan
for FYQ1
(c) Rights to Employee's account in the Company's 401(k) Plan in accordance
with the terms of said plan as it may be amended from time to time.
10. The Employee and the Company mutually agree that neither will disparage the
other, or any affiliate thereof, its products, services and business
practices, or its current or former owners, directors, officers, employees,
and agents at any time or in any manner in the future, nor shall either
assist any other person, firm, or company in disparaging the Company or
Employee. This non disparagement agreement also includes the right to a
favorable job reference.
Releasor further acknowledges that all work he has done to this point has been
turned over to the Company prior to the 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.
/S/ XXXXX X. XXXXXX 10/22/2004
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Employee/Releasor Date
EXTENDED SYSTEMS INCORPORATED
By /S/ XXXXXXX X. XXXXXX 10/20/2004
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Title CEO and President Date