SETTLEMENT AGREEMENT AND RELEASE
Exhibit
10.16
SETTLEMENT
AGREEMENT AND RELEASE
This
Settlement Agreement and Release (this “Agreement") is made and entered into as
of the 15th
day of
July, 2004, between Xxxxxxxx Xxxxxx (“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"), negligent
employment, negligent supervision, claims under Title VII of the Civil Rights
Act of 1964, 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 June 30, 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 $100,000.00. Regular payroll and tax
withholdings and deductions shall be applied and shall reduce this gross amount
accordingly. 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. (a)
ClearOne Communications shall indemnify
and defend Xxxxxxxx Xxxxxx (“Indemnitee”) to the fullest extent permitted by the
Utah Revised Business Corporation Act (as the same exists on the date hereof)
if
Indemnitee is or was a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that Indemnitee
is or was an officer, employee or agent of the Company or a subsidiary of the
Company, by reason of any action or inaction on the part of Indemnitee while
an
officer, employee or agent or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including reasonable attorneys' fees), judgments, fines and
amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) actually and
reasonably incurred by Indemnitee in connection with such action, suit or
proceeding. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or
its
equivalent, shall not, of itself, create a presumption (i) that Indemnitee
did
not act in good faith and in a manner which Indemnitee reasonably believed
to be
in the best interests of the Company, or (ii) with respect to any criminal
action, suit or proceeding, that Indemnitee had reasonable cause to believe
that
Indemnitee's conduct was unlawful.
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(b)
The
Company shall, to the fullest extent permitted by the Utah Revised Business
Corporation Act (as the same exists on the date hereof) advance all reasonable
expenses incurred by Indemnitee in connection with the investigation, defense,
settlement or appeal of any civil or criminal action, suit or proceeding
referenced in subsection (a). Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be determined
that
Indemnitee is not entitled to be indemnified by the Company as authorized
hereby. The advances to be made hereunder shall be paid by the Company to
Indemnitee within thirty (30) days following delivery of a written request
therefor by Indemnitee to the Company.
(c)
Indemnitee shall, as a condition precedent to her right to be indemnified or
be
advanced expenses under this Agreement, give the Company notice in writing
as
soon as practicable of any claim made against Indemnitee for which
indemnification will or could be sought under this Agreement. Notice to the
Company shall be directed to the Chief Executive Officer of the Company at
the
address for its principal executive offices (or such other address as the
Company shall designate in writing to Indemnitee). In addition, Indemnitee
shall
give the Company such information and cooperation as it may reasonably require
and as shall be within Indemnitee's power.
(d)
If,
at the time of the receipt of a notice of a claim pursuant to subsection 3(b)
of
this Agreement, the Company has director and officer liability insurance in
effect, the Company shall give prompt notice of the commencement of such action,
suit or proceeding to the insurers in accordance with the procedures set forth
in the respective policies. The Company shall thereafter take all necessary
or
desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all
amounts payable as a result of such action, suit or proceeding in accordance
with the terms of such policies.
4. 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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5.
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.
6. 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.
7. 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.
8. 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.
9. Employee
agrees to forfeit all rights and claims to ClearOne stock options granted at
any
time prior to June 30, 2004.
10. 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.
11. 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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12.
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.
13. 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.
14. 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.
15. 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.
16. 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
17. 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.
18. 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.
19. 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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20. 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.
21. 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.
22. 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 Thursday, August 5, 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/
Xxxxxxxx
Xxxxxx
CLEARONE
COMMUNICATIONS CORP.
/s/
XxXxxxx X.
Call
XxXxxxx
X. Call
Vice
President, Human Resources
