EXHIBIT 10.55
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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 Xxxx 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 "ESI" or the
"Releasees").
A. Whereas, the Releasor's date of hire with ESI was December 2, 1991.
B. Whereas, the Releasor's active employment with ESI will be terminated on
December 31, 2003(the "Termination Date").
C. Whereas, ESI has agreed to pay severance in the amount of $89,250 (less any
applicable withholding taxes as required by law) which represents six (6) months
of base pay, plus bonus payable under ESI's North America Bonus Program for the
quarter ending December 31, 2003 (if applicable), plus an additional $3,000 in
lieu of fringe benefits, to Releasor in exchange and as consideration for
execution by Releasor of this Agreement.
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. Termination of Employment.
(a) That in consideration of severance payment in the amount of $89,250
(less any applicable withholding) to be paid out over the course of
six (6) months beginning after December 31, 2003, plus an additional
$3,000 in lieu of fringe benefits, to be paid on or before January 16,
2004, 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 or termination of employment with ESI. 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 ESI.
The Indemnification Agreement between Releasor and ESI dated March 4,
1998 shall continue in effect according to its terms.
In the event of a change in control of fifty percent (50%) or more of
the outstanding voting shares of ESI, the entire amount that remains
payable under this Paragraph 1 as of the date of such change in
control shall be payable, at the option of Releasor, in a lump sum
rather than over the course of the remaining period as set forth
above.
(b) Releasor shall be entitled to payment of all accrued and unused
vacation, which shall be paid to Releasor in a lump sum on December
31, 2003. Releasor shall not be required to use vacation time during
the Interim Employment Period.
(c) Releasor shall be entitled to payment of bonus payable to ESI
employees under the Extended Systems North America Bonus Program for
the quarter ending December 31, 2003 (if applicable). For absence of
doubt, Releasor shall be deemed to be an employee at the end of the
quarter for purposes of such program. Bonus will payable on ESI's last
payroll of the month following the end of the quarter.
(c) Effective as of November 10, 2003, Releasor resigns from her positions
as an officer and/or director of any of ESI and its subsidiaries and
affiliates.
2. Interim Employment Period.
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(a) Role as Strategic Advisor to ESI. Commencing on the Effective Date,
Releasor shall make herself available for up to 40 hours per week,
excluding scheduled ESI holidays, to serve as a Strategic Advisor to
ESI's CEO, CFO, and Executive Management Team through December 31,
2003 (the "Interim Employment Term"). During the Interim Employment
Term, Releasor hereby agrees, upon request by ESI, and to the extent
reasonably necessary, to provide assistance to ESI as described on
Schedule A to this Agreement. The amounts paid under 2(b) hereof are
intended to be the sole compensation for Releasor for these services.
(b) Compensation for Services. Releasor shall be compensated as an
employee at the rate of $14,875.00 per month, from November 15, 2003
through December 31, 2003 and shall be entitled to receive all
employee benefits as a regular full-time employee during the Interim
Employment Term. Releasor shall be deemed to be an employee on
December 31, 2003 for purposes of participation in all ESI benefit
plans.
(c) All of Releasor's unvested ESI stock options with an exercise price
less than $10.00 per share that are held by Releasor and were granted
pursuant to ESI's 1998 Stock Plan (as listed on Schedule B hereto)
will automatically vest and become exercisable as of December 31,
2003. ESI also will amend Releasor's options held by her under ESI's
1998 Stock Plan and under ESI's 1994 Stock Plan so that (i)
non-qualified stock options held by Releasor shall be exercisable
until the earlier of December 31, 2004 or the expiration date of such
options and (ii) Releasor shall have the option, exercisable by
delivery of written notice of exercise to ESI before the ninetieth
(90th) day following the Termination Date, of converting any incentive
stock options into nonqualified stock options with an exercise period
extending until the earlier of December 31, 2004 or the expiration
date of such options. Following the Interim Employment Term, such
options shall continue to be subject to the terms and conditions of
ESI's 1998 Stock Plan or 1994 Stock Plan, as the case may be, and the
applicable option agreements entered into by and between Releasor and
ESI, as amended above.
3. 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 ESI'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 ESI.
To comply with the Older Workers Benefit Protection Act of 1990, this
Settlement, Release and Severance Agreement fully incorporates the legal
requirements by reference into this Agreement and ESI has advised employee
of the legalities as follows:
a. This Agreement is written in laymen's terms, and the Employee
understands and comprehends its terms;
b. Employee has been advised of her right to consult an attorney to
review the Agreement, and has had the benefit of an attorney
throughout the settlement process;
c. Employee does not waive the rights or claims that may arise after the
date the waiver is executed;
d. Employee is receiving consideration beyond anything of value to which
she is already entitled;
e. Employee has been given at least twenty-one (21) days within which to
consider this settlement agreement;
f. Employee has been advised to consult with an attorney prior to
executing this agreement;
g. For a period of seven (7) days after the execution of this Agreement
Releasor may cancel the Agreement upon written notice to Releasees.
Unknown Claims. Releasor represents that she is not aware of any claim
other than the claims that are released by this Agreement. Releasor
acknowledges that she has been advised by legal counsel and is familiar
with the principle that a general release does not extend to claims which
the Releasor does not know or suspect to exist in her favor at the time of
executing the release, which if known by her must have materially affected
her settlement with the Releasees.
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Releasor, being aware of said principle, agrees to expressly waive any
rights she may have to that effect, as well as under any other statute or
common law principles of similar effect.
4. 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 ESI obtained by Releasor during her
employment with ESI 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. Notwithstanding the foregoing,
Releasor and Releasees agree that ESI may issue a press release regarding
the termination of Releasor's active employment with ESI, which shall be
acceptable to ESI and Releasor and may describe or file this Agreement and
the exhibits hereto with any governmental agency as required by law or the
rules and regulations of the Nasdaq Stock Market.
NONDISCLOSURE BY RELEASOR. Releasor agrees to abide by the terms and
conditions of the Nondisclosure Agreement, signed by Releasor and dated
December 2, 1991. Notwithstanding the foregoing, Releasor shall not be in
violation of this paragraph if Releasor discloses any such information
pursuant to applicable law or order of a court or other governmental
entity, so long as Releasor first provides the Company with prior notice of
such requirement and a reasonable opportunity to seek a protective order.
IMPROVEMENTS TO ESI PRODUCTS AND RELATED INVENTIONS. 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 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 the 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 ESI. All matters referred to in this
paragraph shall be protected against nondisclosure in the manner as
CONFIDENTIAL INFORMATION under this Agreement.
Releasee shall not disparage Releasor or intentionally interfere with,
impair or otherwise damage Releasor's reputation, to any person.
5. For a period of six (6) months from the Termination Date, Releasor also
agrees that she will not, without the prior written consent of ESI , and
whether directly or indirectly and whether on Releasor's own behalf or on
behalf of any other person, firm, company or other organization or jointly:
a. Seek or solicit any business order, instruction, or customer in
connection with the Restricted Business; act on behalf of any company
engaging in the Restricted Business with respect to any customer of
ESI;
b. Carry out, engage and/or accept employment in any 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.
For purposes of this Agreement, Restricted Business means any business
conducted by one or more of Pumatech, XcelleNet, iAnywhere and Synchrologic
or their affiliates.
Releasor agrees that for a period of six (6) months after the Termination
Date, she shall not directly induce or attempt to induce any employee,
agent or consultant of ESI or any subsidiary to terminate his or her
association with ESI or any affiliates. ESI and Releasor agree that the
provisions of this paragraph contain restrictions that are not greater than
necessary to protect the interests of ESI. In the event of the breach or
threatened breach by Releasor of this paragraph, ESI, 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. That it is understood and agreed by the Releasor that no promise,
inducement or agreement not stated herein has been made to her and that
this Agreement and the exhibits and schedules hereto contain the entire
agreement among the parties hereto, with the exception to the attachments
hereto, and that the terms of this Agreement are contractual and not mere
recitals.
7. 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.
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8. Releasor also certifies that she does not have in her possession or
control, and that she has not taken or will not take from ESI premises, any
Company property with the exception of the IBM ThinkPad currently in her
position and other than the items listed on Schedule 3 which she shall be
entitled to use during the Interim Employment Term. Company property
includes, but is not limited to, cell phones, PDAs, 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 ESI 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 ESI grants written permission to use or disclose it.
9. In the event that any provision, or any portion thereof, becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without
said provision or portion of said provision.
10. Releasor further understands and agrees that all work she have done to this
point will be turned over to ESI prior to her termination date.
11. This Agreement is effective after it has been signed by both parties and
after eight (8) days have passed since Releasor has signed the Agreement
(the "Effective Date").
NOTE: EMPOYEE IS HEREBY ADVISED OF 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 ESI WITHIN SEVEN (7) DAYS. NO
CONSIDERATION SHALL BE CONVEYED UNTIL SUCH TIME PERIOD HAS EXPIRED.
12. Voluntary Execution of Agreement. This Agreement is executed voluntarily
and without any duress or undue influence on the part or behalf of the
parties hereto, with the full intent of releasing all claims. The parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or
that they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and of
the releases it contains; and (d) They are fully aware of the legal
and binding effect of this Agreement.
DATED as of 11, 10, 2003.
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Month Day
/s/ Xxxxx X. Xxxx
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Employee and Releasor
/s/ Xxxxxxx X. Xxxxxx
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ESI and Releasees
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