EXHIBIT 10.58
-------------
SETTLEMENT, RELEASE, AND SEVERANCE AGREEMENT
This Settlement, Release and Severance Agreement (hereinafter "Agreement")
is made and entered into by and between Xxxxxxx 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 May 10, 2004;
B. Whereas, the Releasor's active employment with the Company was terminated
on January 21, 2005;
C. Whereas, Releasor's employment with the Company will terminate effective
January 21, 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 21,
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, provided that the Company has also executed this agreement
by that date ("Effective Date").
3. Releasor acknowledges and agrees that effective January 21, 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 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.
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/ XXXXXXX XXXXXX 01/25/2005
---------------------------- ------------------
Employee/Releasor Date
EXTENDED SYSTEMS INCORPORATED
By: /S/ XXXXXXX X. XXXXXX 02/03/2005
------------------------- ------------------
Its: President and CEO Date
