EXHIBIT 10.57
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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 Xxxxxx Xxxxx 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 28, 2001;
B. Whereas, the Releasor's active employment with the Company was
terminated on January 3, 2005;
C. Whereas, Releasor's employment with the Company will terminate
effective January 3, 2005 ("Termination Date");
D. 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. SIX (6) MONTHS OF BASE SALARY; and
2. $3,000 in lieu of fringe benefits.
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 D 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 January 3, 2005.
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 is receiving consideration beyond anything of value
to which he/she is already entitled;
5. Employee has been given (21) days to consider this Agreement
(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 January 3, 2005, 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
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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.
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.
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.
9. Releasor further acknowledges that all work he has done to this
point has been turned over to the Company prior to the Termination
Date.
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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/ XXXXXX XXXXX 12/27/2004
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Employee/Releasor Date
EXTENDED SYSTEMS INCORPORATED
By /S/ XXXX XXXXXX 12/13/2004
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Title: Vice President Human Resources Date
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