SETTLEMENT AGREEMENT AND RELEASE
Exhibit
10.13
SETTLEMENT
AGREEMENT AND RELEASE
This
Settlement Agreement and Release (this “Agreement") is made and entered into as
of the 27th
day of
February 2004, between Xxxxxxx X. Xxxx (“Employee”) and ClearOne Communications
Corporation (“ClearOne”), who shall be referred to as the “Parties”, or
individually as a “Party”.
DEFINITIONS
1. The
term
“Employee” shall mean Employee and his or her heirs, assigns, and legal
representatives.
2. The
phrase "ClearOne Released Parties" shall mean ClearOne and any and all business
units, committees, groups, and their present, former or future parents,
affiliates, subsidiaries, employees, agents, directors, owners, officers,
attorneys, successors, predecessors, and assigns.
3. The
"Released Claims" shall mean any type or manner of suits, claims, demands,
allegations, charges, damages, or causes of action whatsoever in law or in
equity under federal, state, municipal or local statute, law, ordinance,
regulation, constitution, or common law, whether known or unknown, which
Employee has ever had or now has against the ClearOne Released Parties. This
includes but is not limited to any action for costs, interest or attorney's
fees, which arise in whole or in part from Employee's employment relationship
with ClearOne, from the ending of that relationship, and from any other conduct
by or dealings of any kind between Employee and the ClearOne Released Parties,
which occurred prior to the execution of this Agreement. This also includes
but
is not limited to any and all claims, rights, demands, allegations and causes
of
action for alleged wrongful discharge, breach of alleged employment contract,
breach of the covenant of good faith and fair dealing, termination in violation
of public policy, intentional or negligent infliction of emotional distress,
fraud, misrepresentation, defamation, interference with prospective economic
advantage, failure to pay wages due or other monies owed, failure to pay
pension
benefits, conversion, breach of duty, interference with existing economic
relations, punitive damages, retaliation, discrimination on the basis of
age in
violation of the Age Discrimination and Employment Act of 1967, as amended
("ADEA"), harassment or discrimination on the basis of sex, race, color,
citizenship, religion, age, national origin, or disability, or other protected
classification under the federal, state, municipal or local laws of employment,
including those arising under the common law, and any alleged violation of
the
Employee Retirement Income Security Act of 1974 ("ERISA"), the Fair Labor
Standards Act ("FLSA"), the Occupational Safety and Health Act ("OSHA"),
and any
other law.
RECITALS
A. WHEREAS,
the Parties desire to settle and compromise the Released Claims and to enter
into this Agreement.
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COVENANTS
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and in consideration of the mutual covenants
set
forth in this Agreement, the Parties agree as follows:
1. Employee’s
employment with ClearOne shall end effective February 27, 2004. Employee
is not
entitled to receive any further compensation or benefits from ClearOne after
this date.
2. Notwithstanding
the provisions of section 1, above, after his or her execution of this Agreement
and in accordance with the terms of this Agreement, beginning after the
effective date of termination of Employee’s employment, ClearOne will make total
payment to Employee in the amount of $75,000.00 paid in increments according
to
the normal payroll schedule. Regular payroll and tax withholdings and deductions
shall be applied and shall reduce this gross amount accordingly. In addition,
25,000 ClearOne stock options shall vest on February 27, 2004. Employee
acknowledges that this sum constitutes consideration for Employee’s execution
and adherence to the provisions of this Agreement. Employee understands and
agrees that he or she would not receive the amounts specified herein except
for
his or her execution of this Agreement and the fulfillment of the promises
contained herein. The ClearOne Released Parties make no representations
whatsoever to Employee concerning the taxable status of the payment of the
settlement amount. Employee assumes full and sole responsibility for any
tax
consequences related to the settlement amount. Employee understands and agrees
to indemnify and hold harmless the ClearOne Released Parties from any taxes,
assessments, withholding obligations, penalties or interest payments that
they
may incur at any time by reason of demand, suit or proceeding brought against
them for any taxes or assessments or withholdings arising out of the payment
of
the settlement amount. Employee acknowledges he or she has been fully
compensated by the terms of this Agreement for releasing the Released
Claims.
3. Employee
shall not pursue, or authorize anyone on his or her behalf to pursue, the
Released Claims in any way in any court. Employee represents that he or she
has
not filed and there is not pending with any governmental agency or any state
or
federal court, any other claims, complaints, charges, or lawsuits of any
kind
against the ClearOne Released Parties. Employee agrees that he or she will
not
make any filings with any court at any time hereafter for any matter, claim
or
incident, known or unknown, which occurred or arose out of occurrences on
or
prior to the date of this Agreement; provided, however, this shall not limit
the
Parties from filing a lawsuit for the sole purpose of enforcing their rights
under this Agreement. Each of the Parties shall bear their own costs and
attorneys' fees in this dispute.
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4.
Employee hereby waives, releases, remises and discharges each and every one
of
the ClearOne Released Parties from liability with respect to the Released
Claims. Employee acknowledges that he or she understands he or she is prohibited
from any further relief on the Released Claims. Employee hereby promises
and
covenants never to institute any suit or action at law or in equity against
the
ClearOne Released Parties regarding or relating to the Released Claims.
Specifically and without limitation, Employee understands and agrees that
he or
she is waiving and forever discharging the ClearOne Released Parties from
any
and all claims, causes of action or complaints he or she may have or have
ever
had, which have or may have arisen prior to the execution of this
Agreement.
5. Employee
represents and warrants that he or she is the sole owner of the Released
Claims,
that the Released Claims have not been assigned, transferred, or disposed
of in
fact, by operation of law or in any manner whatsoever, and that he or she
has
the full right and power to grant, execute and deliver the full and complete
releases, undertakings, and agreements herein contained.
6. Employee
agrees that the existence and terms of this Agreement shall be and remain
confidential. Employee acknowledges that this confidentiality provision is
an
essential element of the consideration he provides to ClearOne for entering
into
this Agreement. Therefore, Employee agrees not to discuss or describe any
information concerning ClearOne, the circumstances of the ending of Employee's
employment with ClearOne or the existence of the terms of this Agreement
to
anyone, except as required by law or permitted herein.
7. Employee
reaffirms and agrees to observe and abide by the terms of the Confidentiality
and Invention Assignment Agreement (“Confidentiality Agreement”) he or she
signed with ClearOne. Employee certifies and represents that he or she has
fully
complied with all terms of the Confidentiality Agreement to date and has
returned to ClearOne all records or documents or other property of ClearOne
within his or her possession. Employee understands that his or her receipt
of
the consideration provided under this Agreement is expressly conditioned
on
Employee’s compliance with the obligations in this paragraph.
8. Employee
agrees not to disparage, orally or in writing, ClearOne,
its
officers, employees, management, operations, products, designs, or any other
aspects of ClearOne’s
affairs to any third person or entity.
9. Employee
agrees that for one year following Employee’s separation from employment with
ClearOne,
Employee shall not, directly or indirectly, in any capacity (including but
not
limited to, as an individual, a sole proprietor, a member of a partnership,
a
stockholder, investor, officer, or director of a corporation, an employee,
agent, associate, or consultant of any person, firm or corporation or other
entity) hire any person from, attempt to hire any person from, or solicit,
induce, persuade, or otherwise cause any person to leave his or her employment
with ClearOne.
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10.
Employee
agrees that for one year following Employee’s separation from employment with
ClearOne,
Employee shall not, directly or indirectly, in any capacity, solicit the
business of any customer of ClearOne
except
on behalf of ClearOne,
or
attempt to induce any customer of ClearOne
to cease
or reduce its business with ClearOne;
provided that following Employee’s separation from employment with Company he or
she may solicit a customer of ClearOne
to
purchase goods or services that do not compete directly or indirectly with
those
then offered by ClearOne.
11. Any
breach of Employee’s obligations under this Agreement shall, in addition to all
other remedies available to ClearOne,
result
in the immediate release of ClearOne
from any
obligations it has to provide further payments under this Agreement. In
addition, ClearOne
may
pursue such additional legal or equitable remedies as may be available to
it.
12. This
Agreement does not constitute and shall not be construed as an admission
by
ClearOne
of any
breach of any alleged agreements or duties, or of any wrongdoing toward Employee
or any other person, including any alleged breach of contract or violation
of
any federal, state, or local law, regulation, or ordinance. ClearOne
specifically disclaims any liability to Employee for wrongdoing of any kind.
13. The
Parties agree that this Agreement may be used in evidence in a subsequent
proceeding in which any of the Parties alleges a breach of this
Agreement.
14. The
parties shall attempt in good faith to resolve any dispute arising out of
or
relating to this Agreement by negotiation. The parties recognize that
irreparable injury to ClearOne
will
result from a material breach of this Agreement, and that monetary damages
will
be inadequate to rectify such injury. Accordingly, notwithstanding anything
to
the contrary, ClearOne
shall be
entitled to one or more preliminary or permanent orders: (i) restraining
or
enjoining any act which would constitute a material breach of this Agreement,
and (ii) compelling the performance of any obligation which, if not performed,
would constitute a material breach of this Agreement, and to attorney’s fees in
connection with any such action
15. Employee
affirms he or she is not relying on any representations or statements made
by
the ClearOne
Released
Parties which are not specifically included in this Agreement.
Employee
acknowledges he or she has been informed in writing by this Agreement that
he or
she has the right to consult with legal counsel regarding this release and
confirms Employee has consulted with counsel to the extent desired concerning
the meaning and consequences of this Agreement.
16. This
Agreement constitutes the entire agreement between the Parties with relation
to
the subject matter hereof. Any prior negotiations or correspondence relating
to
the subject matter hereof shall be deemed to have merged into this Agreement
and
to the extent inconsistent herewith shall be deemed to be of no force or
effect.
17. This
Agreement may be executed in any number of counterparts, each of which when
executed and delivered shall be an original, but all of such counterparts
shall
constitute one and the same instrument.
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18. This
Agreement shall be interpreted and enforced in accordance with the laws of
the
State of Utah, and/or when applicable, of the United States. By entering
into
this Agreement, the Parties submit themselves and their principals individually
to personal jurisdiction in the courts in the State of Utah and agree that
Utah
is the only appropriate venue for any action brought to interpret or enforce
any
provision of this Agreement, or which may otherwise arise under or relate
to the
subject matter of this Agreement.
19. The
provisions of this Agreement are severable, and if any part of it is found
to be
unenforceable, the other parts and/or paragraphs shall remain fully valid
and
enforceable. Should any provisions of this Agreement be determined by any
court
or administrative body to be invalid, the validity of the remaining provisions
is not affected thereby and the invalidated part shall be deemed not a part
of
this Agreement. Any court or administrative body shall construe and interpret
this Agreement as enforceable to the full extent available under applicable
law.
This Agreement shall survive the termination of any arrangements contained
in
it.
20. Employee
acknowledges and understands this is a legal contract and that he or she
signs
this Agreement knowingly, freely and voluntarily and has not been threatened,
coerced or intimidated into making the same. Employee acknowledges that he
or
she has had ample and reasonable time to consider this Agreement and the
effects
and import of it and that he or she has fully dwelt on it in his or her mind
and
has had such counsel and advice, legal or otherwise, as Employee desires
in
order to make this Agreement. EMPLOYEE, BY SIGNING THIS AGREEMENT, ACKNOWLEDGES
IT CONTAINS A RELEASE OF KNOWN AND UNKNOWN CLAIMS. Employee has read and
fully
considered this Agreement and understands and desires to enter into it. The
terms of this agreement were derived through mutual compromise and are fully
understood. Employee
acknowledges that he or she has been offered at least twenty one (21) days
to
consider the impact of this Agreement and its release of his or her rights
to
bring suit against the ClearOne Released Parties and after due consideration
has
decided to enter into this Agreement at this time. Employee further understands
that he or she may revoke this Agreement for a period of up to seven (7)
days
following signature and execution of the same. This Agreement shall not become
effective or enforceable until the revocation period has expired. Any revocation
within this period must be signed and submitted in writing to the undersigned
representative of ClearOne and must state, "I hereby revoke my acceptance
of the
Agreement." Employee understands that if he or she revokes this Agreement,
he or
she is not entitled to receive the consideration provided by this
Agreement.
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Employee
has until Monday, March 15, 2004 to accept terms and conditions by signing
below. If Employee does not accept such terms and conditions by such date,
this
offer shall expire at that
time.
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first
set forth above.
EMPLOYEE
/s/
Xxxxxxx X. Xxxx
____________________
CLEARONE
COMMUNICATIONS CORP.
/s/
Xxxxxxx X. Call _________________________
XxXxxxx
X. Call
Vice
President, Human Resources
