EXHIBIT 10.1
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INSIGHTFUL CORPORATION
SATISFACTION, TERMINATION AND RELEASE AGREEMENT
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This Satisfaction, Termination and Release Agreement (this "Agreement"), is
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made as of January 8, 2002, by and between Insightful Corporation, a Delaware
corporation (the "Company"), and Xxxxxxx Xxxxxx ("Xxxxxx").
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RECITALS
A. The Company and Digate are parties to that certain Promissory Note,
dated as of June 19, 2000 (the "Note"), whereby the Company agreed to lend to
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Digate an amount equal to $550,000 to purchase 275,000 shares of the Company's
Common Stock (the "Shares"),
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B. The Company and Digate are parties to that certain Pledge Agreement,
dated as of June 19, 2000 (the "Pledge Agreement"), whereby Digate agreed to
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pledge the Shares to the Company as security for the repayment of the principal
and interest outstanding under the Note.
C. As of the date hereof, 167,800 Shares remain pledged pursuant to the
Pledge Agreement, and $307,959.05 in principal and interest are outstanding
under the Note.
D. The Company desires to accept as full payment of all of Digate's
outstanding obligations under the Note, and Digate desires to secure all rights,
title and interest in and to, the remaining Shares pledged pursuant to the
Pledge Agreement, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. SATISFACTION OF DEBT. Subject to the terms and conditions of this
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Agreement, Digate shall pay to the Company, and the Company agrees to accept as
full payment of all of Digate's outstanding obligations under the Note,
$307,959.05 (the "Payoff Amount"), which amount represents the principal and
interest outstanding under the Note.
2. CLOSING.
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(a) The transfer of the Payoff Amount as full payment of all of
Digate's outstanding obligations under the Note shall occur at the principal
office of the Company simultaneously with the execution of this Agreement by the
parties or on such other date as the Company and Digate shall agree (the
"Closing Date").
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(b) On the Closing Date,
(i) Digate shall deliver to the Company a negotiable instrument
effecting the transfer of the Payoff Amount to the Company;
(ii) the Company shall deliver a letter to First Albany
Corporation, the escrow agent for the Shares authorizing the release of, or the
taking of any action to release, any and all remaining Shares covered by the
Pledge Agreement; and
(iii) the Company shall cancel the Note and deliver the cancelled
Note to Digate.
3. CANCELLATION OF PLEDGE AGREEMENT. Upon the delivery of the Payoff
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Amount, the Pledge Agreement shall be terminated effective immediately.
4. MUTUAL RELEASE. The Company and Digate hereby fully, forever,
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irrevocably and unconditionally release and discharge each other from any and
all claims and liabilities, whether or not currently known, that either party
asserted or could have asserted, had or may now have or may hereafter have
against the other relating to or arising under the Pledge Agreement or the Note.
5. RELEASE OF UNKNOWN CLAIMS. The Company and Digate intentionally and
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voluntarily waive and relinquish the benefits of any statutes or decisions
providing that a general release does not extend to claims which the creditor
does not know or suspect to exist in its favor at the time of executing the
release, which if known by it must have materially affected its settlement with
the debtor.
6. NO ASSIGNMENTS OF RELEASED CLAIMS. The Company and Digate represent
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and warrant that they have not previously assigned or transferred, nor will they
assign or transfer, any claim, demand, or cause of being released by them in
this Agreement.
7. MISCELLANEOUS.
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(a) GOVERNING LAW. This Agreement and all acts and transactions
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pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the state of
Delaware, without giving effect to principles of conflicts of law.
(b) ENTIRE AGREEMENT; ENFORCEMENT OF RIGHTS. This Agreement sets
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forth the entire agreement and understanding of the parties relating to the
subject matter herein and merges all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing signed by the parties
to this Agreement. The failure by either party to enforce any rights under this
Agreement shall not be construed as a waiver of any rights of such party.
(c) SEVERABILITY. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(d) CONSTRUCTION. This Agreement is the result of negotiations
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between and has been reviewed by each of the parties hereto and their respective
counsel, if any; accordingly, this Agreement shall be deemed to be the product
of all of the parties hereto, and no ambiguity shall be construed in favor of or
against any one of the parties hereto.
(e) NOTICES. Any notice required or permitted by this Agreement shall
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be in writing and shall be deemed sufficient when delivered personally or sent
by telegram or fax or 48 hours after being deposited in the U.S. mail, as
certified or registered mail, with postage prepaid, and addressed to the party
to be notified at such party's address or fax number as set forth below or as
subsequently modified by written notice.
(f) COUNTERPARTS. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
The parties have executed this Satisfaction, Termination and Release
Agreement as of the date first set forth above.
COMPANY:
INSIGHTFUL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: CFO and Treasurer
PURCHASER:
XXXXXXX XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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(Signature)
