August 1, 2006 Via E-Mail To: Alan G. Shuler Re: Separation Agreement and Release Dear Alan:
August 1, 2006
Via E-Mail
To: Xxxx X. Xxxxxx
Dear Xxxx:
As you know, your employment with MakeMusic, Inc. (“MakeMusic”) ended effective at the close of
business on July 31, 2006. On July 31, 2006, MakeMusic gave you a Separation Agreement and Release
letter for your review and execution. On July 31, 2006, you requested that certain changes be made
to the Agreement and XxxxXxxxx agreed to make certain changes. This Separation Agreement and
Release letter dated August 1, 2006 is the revised Agreement which includes the agreed upon
changes. You acknowledge and agree that MakeMusic need not restart the 21-day consideration period
noted below on account of the changes reflected herein.
Although not required to do so, MakeMusic would like to offer you separation pay and benefits to
ease your transition to new employment. The purpose of this Separation Agreement and Release
letter (“Agreement”) is to set forth the specific separation pay and benefits that MakeMusic will
provide you in exchange for your agreement to the terms and conditions of this Agreement.
By your signature below, you agree to the following terms and conditions:
1. End of Employment. Your employment with MakeMusic ended effective at the close of
business on July 31, 2006. Upon your receipt of your final paycheck which includes payment for
services through July 31, 2006, you will have received all wages owed to you by virtue of your
employment with MakeMusic or termination thereof. Upon your receipt of payment from MakeMusic in
the amount of $7,896.00, less applicable deductions and withholding, which represents payment for
your prorated calendar year 2006 bonus, you will have received all compensation owed to you by
virtue of your employment with MakeMusic or termination thereof. Upon your receipt of payment from
MakeMusic in the amount of $6,890.96, less applicable deductions and withholding, which represents
payment for 102.38 hours of accrued and unused Paid Time Off (PTO) at your regular rate, you will
have received all benefits owed to you by virtue of your employment with MakeMusic or termination
thereof. The COBRA period for continuation of your insurance coverage under MakeMusic’s group plans
will begin on August 1, 2006. Information regarding your right to elect COBRA coverage will be
sent to you via separate letter.
You are not eligible for any other payments or benefits by virtue of your employment with
MakeMusic or termination thereof except for those expressly described in this Agreement. You will
not receive the payments described in Section 2 and subsequent sections of this Agreement if you
(i) do not sign this Agreement, (ii) rescind this Agreement after signing it, or (iii) violate any
of the terms and conditions set forth in this Agreement.
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2. Separation Pay and Benefits. Specifically in consideration of your signing this
Agreement and subject to the limitations, obligations, and other provisions contained in this
Agreement, MakeMusic agrees as follows:
a. To pay you five months of separation pay for the period from August 1, 2006 through
December 31, 2006 in the gross amount of Fifty Eight Thousand Three Hundred Thirty Three and 33/100
Dollars ($58,333.33), less applicable deductions and withholding. Such separation pay will be paid
to you in installments on MakeMusic’s normal payroll schedule beginning with the first pay day
following the expiration of the rescission periods described in Section 5 below, with the first
such payment to include any retroactive payments to August 1, 2006.
b. Provided you timely elect COBRA, to pay $816.74 of your COBRA premiums for health insurance
for the months of August, September, October, November and December 2006. Beginning August 1,
2006, you will be responsible for paying $140 of your COBRA premiums for health insurance for the
months of August, September, October, November and December 2006. Beginning January 1, 2007, you
will be responsible for paying your entire COBRA premiums for health insurance. Beginning August
1, 2006, you will be responsible for paying your entire COBRA premiums for dental and life
insurance.
3. Release of Claims. Specifically in consideration of the separation pay and
benefits described in Section 2, and to which you would not otherwise be entitled, by signing this
Agreement you, for yourself and anyone who has or obtains legal rights or claims through you, agree
to the following:
a. You hereby do release, agree not to sue, and forever discharge MakeMusic (as defined below)
of and from any and all manner of claims, demands, actions, causes of action, administrative
claims, liability, damages, claims for punitive or liquidated damages, claims for attorney’s fees,
costs and disbursements, individual or class action claims, or demands of any kind whatsoever, you
have or might have against them or any of them, whether known or unknown, in law or equity,
contract or tort, arising out of or in connection with your employment with MakeMusic, or the
termination of that employment, or otherwise, and however originating or existing, from the
beginning of time through the date of your signing this Agreement.
b. This release includes, without limiting the generality of the foregoing, any claims you may
have for wages, bonuses, commissions, penalties, deferred compensation, vacation pay, separation
benefits, defamation, invasion of privacy, negligence, emotional distress, breach of contract,
estoppel, improper discharge (based on contract, common law, or statute, including any federal,
state or local statute or ordinance prohibiting discrimination or retaliation in employment),
violation of the United States Constitution, the Minnesota Constitution, the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq., the Minnesota Human Rights Act, Minn.
Stat. § 363A.01
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et seq., Title VII of the Civil Rights Act, 42 U.S.C. § 2000e
et seq., the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq., the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001 et seq., the Family and Medical Leave Act, 29 U.S.C. § 2601
et seq., the National Labor Relations Act, 29 U.S.C. § 151 et seq.,
the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq., the Xxxxxxxx-Xxxxx
Act, 15 U.S.C. § 7201 et seq., the Fair Labor Standards Act, any claim arising
under Minn. Stat. Chapters 177 and 181, Minn. Stat. § 176.82, and any claim for retaliation,
harassment or discrimination based on sex, race, color, creed, religion, age, national origin,
marital status, sexual orientation, disability, status with regard to public assistance or any
other protected class, or sexual or other harassment. You hereby waive any and all relief not
provided for in this Agreement. You understand and agree that, by signing this Agreement, you
waive and release any past, present, or future claim to employment with MakeMusic.
c. You affirm that you have not caused or permitted, and to the full extent permitted by law
will not cause or permit to be filed, any charge, complaint, or action of any nature or type
against MakeMusic, including but not limited to any action or proceeding raising claims arising in
tort or contract, or any claims arising under federal, state, or local laws, including
discrimination laws. If you file, or have filed on your behalf, a charge, complaint, or action,
you agree that the payments and benefits described above in Section 2 are in complete satisfaction
of any and all claims in connection with such charge, complaint, or action and you waive, and agree
not to take, any award of money or other damages from such charge, complaint, or action.
d. You are not, by signing this Agreement, releasing or waiving (1) any vested interest you
may have in any 401(k) or profit sharing plan by virtue of your employment with MakeMusic, (2) any
rights or claims that may arise after the Agreement is signed, (3) the post-employment payments and
benefits specifically promised to you under this Agreement, (4) the right to institute legal action
for the purpose of enforcing the provisions of this Agreement, or (5) the right to apply for state
unemployment compensation benefits.
e. MakeMusic, as used in this Section 3, shall mean MakeMusic, Inc. and its parent,
subsidiaries, divisions, affiliated entities, insurers, if any, and its and their present and
former officers, directors, shareholders, trustees, employees, agents, attorneys, representatives
and consultants, and the successors and assigns of each, whether in their individual or official
capacities, and the current and former trustees or administrators of any pension or other benefit
plan applicable to the employees or former employees of MakeMusic, in their official and individual
capacities.
4. Notice of Right to Consult Attorney and Twenty-One (21) Calendar Day Consideration
Period. By signing this Agreement, you acknowledge and agree that XxxxXxxxx has informed you
by this Agreement that (1) you have the right to consult with an attorney of your choice prior to
signing this Agreement, and (2) you are entitled to twenty-one (21) calendar days from the receipt
of this Agreement (July 31, 2006) to consider whether the terms are acceptable to you. MakeMusic
encourages you to use the full 21-day period to consider this Agreement but you have the right, if
you choose, to sign this Agreement prior to the expiration of the twenty-one (21) day period.
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5. Notification of Rights under the Minnesota Human Rights Act (Minn. Stat. Chapter 363A)
and the Federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.). You are hereby
notified of your right to rescind the release of claims contained in Section 3 with regard to
claims arising under the Minnesota Human Rights Act, Minnesota Statutes Chapter 363A, within
fifteen (15) calendar days of your signing this Agreement, and with regard to your rights arising
under the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.,
within seven (7) calendar days of your signing this Agreement. The two rescission periods shall
run concurrently. In order to be effective, the rescission must (a) be in writing; (b)
delivered to Xxx Xxxxxxxx, MakeMusic, Inc., 0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx X, Xxxx Xxxxxxx, XX
00000-0000 by hand or mail within the required period; and (c) if delivered by mail, the rescission
must be postmarked within the required period, properly addressed to Xxx Xxxxxxxx, as set forth
above, and sent by certified mail, return receipt requested. This Agreement will be effective upon
the expiration of the 15-day period without rescission. You understand that if you rescind any
part of this Agreement in accordance with this Section 5, you will not receive the separation pay
and benefits described in Section 2 and you will be obligated to return any such payments and
benefits if already received.
6. Return of Property. By signing this Agreement, you acknowledge and agree that all
documents and materials relating to the business of, or the services provided by, MakeMusic are the
sole property of MakeMusic. By signing this Agreement you further agree and represent that you
have returned to MakeMusic all of its property, including but not limited to, all customer records
and other documents and materials, whether on computer disc, hard drive or other form, and all
copies thereof, within your possession or control, which in any manner relate to the business of,
or the duties and services you performed on behalf of MakeMusic.
7. Confidential and Proprietary Information. By signing this Agreement, you
acknowledge and agree that you have had access in your employment with MakeMusic to confidential
and proprietary information of MakeMusic and further acknowledge and agree that the release or
disclosure of any confidential or proprietary information of MakeMusic will cause MakeMusic
irreparable injury. By signing this Agreement, you acknowledge that you have not used or
disclosed, and agree that you will not at any time use or disclose, to any other entity or person,
directly or indirectly, any confidential or proprietary information of MakeMusic. For purposes of
this Agreement, the term “confidential or proprietary information” shall include, but not be
limited to, customer lists and information pertaining to customer lists; contact lists; and
information about the personal or business affairs of MakeMusic’s customers, vendors, or employees.
8. Confidentiality. You promise and agree not to disparage MakeMusic, its owners,
employees, products or services, or disclose or discuss, directly or indirectly, in any manner
whatsoever, any information regarding either (1) the contents and terms of this Agreement, or (2)
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the substance and/or nature of any dispute between MakeMusic and any employee or former employee,
including yourself. You agree that the only people with whom you may discuss this confidential
information are your legal and financial advisors and your spouse, if applicable, provided they
agree to keep the information confidential, or as otherwise required by law.
9. Remedies. If you breach any term of this Agreement, MakeMusic shall be entitled to
its available legal and equitable remedies, including but not limited to suspending and recovering
any and all payments and benefits made or to be made under this Agreement. If MakeMusic seeks
and/or obtains relief from an alleged breach of this Agreement, all of the provisions of this
Agreement shall remain in full force and effect.
10. Non-Admission. It is expressly understood that this Agreement does not
constitute, nor shall it be construed as, an admission by MakeMusic or you of any liability or
unlawful conduct whatsoever. MakeMusic and you specifically deny any liability or unlawful
conduct.
11. Successors and Assigns. This Agreement is personal to you and may not be assigned
by you without the written agreement of MakeMusic. The rights and obligations of this Agreement
shall inure to the successors and assigns of MakeMusic.
12. Enforceability. If a court finds any term of this Agreement to be invalid,
unenforceable, or void, the parties agree that the court shall modify such term to make it
enforceable to the maximum extent possible. If the term cannot be modified, the parties agree that
the term shall be severed and all other terms of this Agreement shall remain in effect.
13. Law Governing. This Agreement shall be governed and construed in accordance with
the laws of the State of Minnesota.
14. Full Agreement. This Agreement contains the full agreement between you and
MakeMusic and may not be modified, altered, or changed in any way except by written agreement
signed by both parties. The parties agree that this Agreement supersedes and terminates any and
all other written and oral agreements and understandings between the parties except for any
confidentiality agreements to which you are subject in connection with your employment with
MakeMusic.
15. Acknowledgment of Reading and Understanding. By signing this Agreement, you
acknowledge that you have read this Agreement, including the release of claims contained in Section
3, and understand that the release of claims is a full and final release of all claims you
may have against MakeMusic and the other entities and individuals covered by the release. By
signing, you also acknowledge and agree that you have entered into this Agreement knowingly and
voluntarily.
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The offer contained in this Agreement will expire at 5:00 p.m. on August 22, 2006. After you
have reviewed this Agreement and obtained whatever advice and counsel you consider appropriate
regarding it, please evidence your agreement to the provisions set forth in this Agreement by
dating and signing the Agreement. Please then return an original signed Agreement to Xxx Xxxxxxxx
no later than 5:00 p.m. on August 22, 2006.
Sincerely,
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Chief Executive Officer
Chief Executive Officer
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ACKNOWLEDGMENT AND SIGNATURE
By signing below, I, Xxxx X. Xxxxxx, acknowledge and agree to the following:
| • | I have had adequate time to consider whether to sign this Separation Agreement and Release. |
| • | I have read this Separation Agreement and Release carefully. |
| • | I understand and agree to all of the terms of the Separation Agreement and Release. |
| • | I am knowingly and voluntarily releasing my claims against MakeMusic. |
| • | I have not, in signing this Agreement, relied upon any statements or explanations made by MakeMusic except as for those specifically set forth in this Separation Agreement and Release. |
| • | I intend this Separation Agreement and Release to be legally binding. |
| • | I am signing this Separation Agreement and Release on or after my last day of employment with MakeMusic. |
Accepted this 1st day of August, 2006.
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
