Exhibit
10.5


 


STRICTLY CONFIDENTIAL


 


SEPARATION
AGREEMENT AND GENERAL RELEASE


 


This
Separation Agreement and General Release (“Agreement”) is entered into between
SpectraLink Corporation (“SpectraLink”) and David Rosenthal. SpectraLink and Mr.
Rosenthal may be referred to in this Agreement together as the “Parties” or
individually as a “Party.”  For purposes
of this Agreement, SpectraLink includes any company related to SpectraLink, in
the past or present; the past and present officers, directors, employee’s,
shareholders, attorneys, agents and representatives of SpectraLink; any present
or past employee’s benefit plan sponsored by SpectraLink and/or the officers
directors, trustees, administrators, employees, attorneys, agents and
representatives of such plan; and any person who acted on behalf of SpectraLink
or on instruction from SpectraLink.


 


In exchange for the
releases and other agreements specified in this Agreement, the Parties agree as
follows:


 


Proprietary and Confidential Information.
Mr. Rosenthal understands and acknowledges that in the course of carrying out his
duties while employed by SpectraLink, a relationship of confidence and trust
was created in favor of SpectraLink with respect to any information of a
confidential and proprietary nature that was disclosed to his by SpectraLink
and that relates to the business of SpectraLink (“Proprietary Information”). Such
Proprietary Information includes, but is not limited to, business strategies,
financial information, accounting procedures, forecasts, business policies,
projections, inventions, marketing plans, product plans, personnel information,
customer lists, identities of prospective business partners, and his specific
job responsibilities and activities while employed by SpectraLink.


 


Mr. Rosenthal acknowledges that he continues to be
bound by the SpectraLink Corporation Employee Non-Disclosure Agreement, and
that as a result of his employment with SpectraLink, he had access to
SpectraLink Proprietary Information. Mr. Rosenthal agrees to hold all
Proprietary Information in strict confidence, to not disclose it to anyone or
any entity except as may be specifically required by law or court order, and to
not make use of such Proprietary Information on behalf of anyone. Mr. Rosenthal
confirms that he has delivered to SpectraLink all documents and data of any nature
containing or pertaining to such Proprietary Information and that he has not
taken with his any such documents or data or any reproduction thereof. Mr. Rosenthal
specifically acknowledges and agrees that any breach of this provision shall
irreparably harm SpectraLink so as to entitle it to injunctive relief to stop
any further breaches or threatened breaches of this provision. Nothing in the
foregoing shall affect in any way the validity and enforceability of the
releases given pursuant to this Agreement, which shall remain binding and
enforceable as against Mr. Rosenthal.


 


Non-Disparagement. Mr. Rosenthal
agrees that the good reputation of SpectraLink is an important asset of
SpectraLink, and therefore agrees that he shall not make any statement or other
communication that disparages or otherwise denigrates SpectraLink, and shall
decline to discuss SpectraLink with any third party (except with his legal
counsel, financial advisors, and immediate family members) other than to
confirm his employment and dates of employment with SpectraLink. Mr. Rosenthal specifically
acknowledges and agrees that any breach of this provision shall irreparably
harm SpectraLink so as to entitle it to injunctive relief to stop any further
breaches or threatened breaches of this provision. Nothing in the foregoing
shall affect in any way the validity and enforceability of the releases given
pursuant to this Agreement, which shall remain binding and enforceable as against
Mr. Rosenthal.


 


Settlement
Consideration for Mr. Rosenthal. SpectraLink has paid Mr. Rosenthal
all employment compensation and has provided Mr. Rosenthal with all benefits to
which Mr. Rosenthal is entitled through and including the effective date of this
Agreement. SpectraLink will make the following additional payments to Mr. Rosenthal
and will provide Mr. Rosenthal with specified benefits and consideration in
exchange for Mr. Rosenthal’s release of SpectraLink and in settlement of any
claim or claims Mr. Rosenthal may have against SpectraLink.


 


Settlement Payment.
As consideration for Mr. Rosenthal’s release of all claims against SpectraLink,
SpectraLink will pay Mr. Rosenthal the sum of $86,666.67 less lawfully required
withholdings, which payment will commence over the agreed upon separation
period set forth below upon execution of this Agreement.. Payment will be in
the form of a SpectraLink check to Mr. Rosenthal mailed to him at his residence
address. Mr. Rosenthal


 

















 


understands that as part
of the settlement, he will hold the position of non-executive assistant to the
president and his benefits will continue until September 10, 2006, at which
time Mr. Rosenthal must return all SpectraLink property in his possession and
that he will perform this position from his home office. If SpectraLink’s
property is not returned to Kathryn Zuber, Director of Human Resources on
September 10, 2006, Mr. Rosenthal will be billed for the value of all
SpectraLink property.


 


SpectraLink shall treat
such payment as income to Mr. Rosenthal from which ordinary federal and state
withholding and taxes shall be deducted. Mr. Rosenthal will indemnify and hold
SpectraLink harmless from any costs, liability or expense, including reasonable
attorney’s fees, arising from the taxation, if any, of any amounts received by Mr.
Rosenthal pursuant to the Agreement, including but not limited to any penalties
or administrative expenses.


 


Mr. Rosenthal’s Release
of SpectraLink.


 


General Release of
SpectraLink Mr. Rosenthal understands that Agreement is a
knowing and voluntary waiver of claims by Mr. Rosenthal related to his
employment with and separation from SpectraLink. In exchange for the
consideration set forth in this Agreement and except for matters specifically
reserved in this Agreement, Mr. Rosenthal, his representatives, successors and
assigns, release and forever discharge SpectraLink from any and all claims,
demands, damages, losses, obligations, rights and causes of action, whether
known or unknown, including but not limited to, all claims, liabilities,
obligations, causes of action or administrative complaints that he now has or
has ever had against SpectraLink relating in any way to his employment at
SpectraLink.


 


Mr. Rosenthal agrees not
to bring any lawsuits or administrative claims against SpectraLink relating to
the claims that Mr. Rosenthal has released nor will he allow any to be brought
or continued on his behalf or in his name.


 


Legal Compliance. Nothing in this
Agreement is intended to or shall prohibit or impair SpectraLink or Mr. Rosenthal
from complying with all applicable laws and regulations, nor is this Agreement
intended to or to be construed to obligate either party to commit any unlawful
acts, or aid or abet in the commission of any unlawful act.


 


Mr. Rosenthal acknowledges that he is aware that his
legal counsel or agents may hereafter discover claims or facts in addition to
or different from those which he now knows or believes to exist with respect to
SpectraLink or the subject matter of this Agreement, but that it is his
intention hereby fully, finally, and forever to settle and release all of the
disputes and differences, known or unknown, suspected or unsuspected, which now
exist, may exist, or heretofore have existed between the Parties. In
furtherance of this intention, the releases herein given shall be and remain in
effect as full and complete releases notwithstanding the discovery or existence
of any such additional or different claim of fact.


 


Without
limiting the generality of the foregoing terms, the scope of Mr. Rosenthal’s
release under the Agreement specifically includes all claims for breach of
contract, ) all claims related to Mr. Rosenthal’s compensation from
SpectraLink, including salary, bonuses, commissions, vacation pay, fringe
benefits, expense reimbursements, severance pay, stock, stock options or any
other ownership interests in SpectraLink (except as set forth below), any other
claim under the common law of Colorado, including claims for tort, fraud, breach
of implied or express contract, wrongful discharge in violation of public
policy, promissory estoppel, negligent or intentional interference with
contract or prospective economic advantage, negligent or intentional
misrepresentation, unfair business practices, breach of a covenant of good
faith and fair dealing both express and implied, negligent or intentional
infliction of emotional distress, defamation, libel, slander, negligence,
personal injury, assault, battery, invasion of privacy, false imprisonment,
conversion, injunctive relief, compensatory damages, punitive damages,
equitable relief, attorney’s fees and costs and any claims under all federal,
state, and local statutory claims including harassment or discrimination and
claims under the following statues: the Colorado Anti-Discrimination Act; the federal
Americans with Disabilities Act of 1990; Title VII of the Civil Rights Act of
1964,as amended; the Civil Rights Act of 1991; the Civil Rights Acts of 1866
and 1871; the Equal Pay Act; the Fair Labor Standards Act; the Family Medical
Leave Act; the National Labor Relations Act; the Occupational Safety and Health
Act; the Rehabilitation Act; Executive Order 11246; the Colorado Wage and Claim
Act; and the Employer Retirement Income Security Act. Mr. Rosenthal hereby
warrants and represents that there are no liens or claims of lien or
assignments in law or equity or otherwise on or against any of the claims or
causes of action released by his hereunder and that the release of claims given
by his shall result in a complete and final release of all claims he has or
could assert against SpectraLink.


 

















 


Each of the Parties
agrees that the foregoing enumeration of claims released is illustrative, and
the claims hereby released are in no way limited by the above recitation of
specific claims, it being the intent of the Parties to fully and completely
release all claims whatsoever in any way relating to Mr. Rosenthal’s employment
with SpectraLink and to the termination of such employment.


 


Mr.
Rosenthal’ Specific ADEA Release of SpectraLink. Mr. Rosenthal
acknowledges and agrees that by entering into this Agreement he is waiving any
and all rights that he may have arising from the Age Discrimination in
Employment Act of 1967 (“ADEA”), as amended, which have arisen on or before the
date of execution of this Agreement. Mr. Rosenthal further expressly
acknowledges and agrees that:


 


a.         Mr. Rosenthal is entering this Agreement voluntarily.


 


b.         Mr. Rosenthal understands and agrees that, by signing this
Agreement, he is giving up any right to file legal proceedings against
SpectraLink arising before the date of the Agreement. Mr. Rosenthal is not
waiving (or giving up) rights or claims that may arise after the date of the
Agreement is executed.


 


c.         In return for this Agreement, Mr. Rosenthal will receive
compensation in addition to that which he was already entitled to receive
before entering this Agreement.


 


d.         Mr. Rosenthal is hereby advised in writing by this Agreement
to consult with an attorney before signing this Agreement.


 


e.         Mr. Rosenthal understands that he has had at least
twenty-one (21) days from the day he received this Agreement, not counting the
day upon which he received it, to consider whether he wishes to sign this
Agreement. If he cannot make up his mind in that period of time, SpectraLink
may or may not allow more time. Mr. Rosenthal further acknowledges that if he
signs this Agreement before the end of the twenty-one (21) day period, it will
be his personal, voluntary decision to do so and he has not been pressured to
make a decision sooner.


 


f.          Right to rescind. Mr. Rosenthal further understands
that he may rescind, that is cancel, this Agreement for any reason within seven
(7) calendar days after signing it. Mr. Rosenthal agrees that rescission must
be in writing and hand-delivered or mailed to SpectraLink. If mailed, the
rescission must be postmarked within the seven (7) day period, properly
addressed to Kathryn Zuber, SpectraLink, 5755 Central Avenue, Boulder, CO
80301; and sent by certified mail, return receipt requested.


 


Mr. Rosenthal understands
that he will not receive any settlement payment under this Agreement if he
revokes or rescinds it, and in any event, Mr. Rosenthal will not receive any
settlement payment until after the seven (7) day revocation period has expired.


 


Reservation of Mr.
Rosenthal’s Rights in Certain Benefits. Nothing contained in
this Agreement will release or discharge SpectraLink, with respect to any
obligation SpectraLink had or has to Mr. Rosenthal under any medical or health
insurance, life insurance and 401(k) plan, pension, profit-sharing or
retirement benefit, if any, to which Mr. Rosenthal was entitled from
SpectraLink before the effective date of this Agreement.


 


Confidentiality
Agreement. Mr. Rosenthal agrees to keep the terms and
conditions of this Agreement strictly confidential. Mr. Rosenthal shall not
disclose, discuss, or reveal the terms of this Agreement to any other person,
entity, or organization, except his legal counsel, financial advisors, taxing
authorities, immediate family members, and then only as necessary to protect his
rights under this Agreement, or as required by subpoena, court order, or other
applicable law (after first giving immediate notice to SpectraLink or its
counsel within three (3) days of receipt so as to enable SpectraLink to seek to
keep the terms and conditions of this Agreement confidential). Mr. Rosenthal
specifically acknowledges and agrees that any breach of this provision shall
irreparably harm SpectraLink so as to entitle it to injunctive relief to stop
any further breaches or threatened breaches of this provision. Nothing in the
foregoing shall affect in any way the validity and enforceability of the
releases given pursuant to this Agreement, which shall remain binding and
enforceable as against Mr. Rosenthal.


 


No Assistance. Mr. Rosenthal agrees not to voluntarily
provide assistance, documentation, information or advice, directly or
indirectly (including through agents or attorneys), to any person or entity in
connection with


 

















 


such person or entity’s bringing or prosecuting of any
claim or cause of action of any kind against SpectraLink any or preparation to
do so, nor shall Mr. Rosenthal induce or encourage any person or entity to
bring any claim or cause of action of any kind against SpectraLink. The Parties
acknowledge and agree that the foregoing sentence shall not prohibit Mr. Rosenthal
from testifying truthfully under subpoena or providing other assistance under
compulsion of law.


 


No Admissions. The Parties understand and agree that
the promises and payments set forth in this Agreement shall not be construed to
be an admission of any liability or wrongdoing by any party.


 


Waiver.
No waiver of any right under this Agreement shall be effective unless embodied
in a writing signed by the waiving party.


 


Enforcement.
In the event that there has been a breach of any provisions of this Agreement
by Mr. Rosenthal, SpectraLink will be entitled to recover reasonable costs and
attorney’s fees in any legal proceeding to enforce this Agreement.


 


Severability.
If any provision of this Agreement is declared by any court of competent
jurisdiction to be invalid for any reason, such invalidity shall not affect the
remaining provisions of this Agreement, which shall be fully severable, and
given full force and effect.


 


Governing Law
This Agreement shall be construed in accordance with the laws of Colorado.


 


Entire Agreement.
The parties understand and agree that this Agreement contains all the
agreements between SpectraLink and Mr. Rosenthal relating to this settlement.


 


CAUTION:
PLEASE READ ENTIRE DOCUMENT BEFORE SIGNING


 


	
  Dated :

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  David Rosenthal

  
	
   

  	
   

  
	
   

  	
   

  
	
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  SpectraLink Corporation

  
	
   

  	
   

  
	
   

  	
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