Exhibit 10.10
April 1, 1997
PERSONAL AND CONFIDENTIAL
Xx. Xxxxx X. Xxxxx, Xx.
0 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: Separation, Waiver and Release Agreement
Dear Xxxxx:
This Letter Agreement sets forth the understanding reached
concerning your separation from Logic Works, Inc. and the settlement of all
matters known or unknown which may exist between you and Logic Works, Inc.,
including its subsidiaries and affiliated corporations and their respective
successors, assigns, representatives, agents, shareholders, officers, directors
and employees (collectively the "Company").
The Company and you have agreed that your separation from your
position as Executive Vice President of Sales and Marketing was effective as of
November 15, 1996. In order to accept this Agreement, you must return one fully
executed original Agreement to me within twenty-one days from its receipt.
This Agreement represents the amicable resolution of all
matters, disputes, causes of action, claims, contentions and differences between
you and the Company and embodies the full and final compromise of all matters
which have, or could have, been raised with regard to your employment and
termination from the Company.
Information regarding your options with respect to your 401(k)
balance will be provided to you under separate cover. You have agreed to submit
all reimbursable business expenses no later than
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December 31, 1996. Such expenses will be reimbursed in accordance with the
Company's business expense policy.
The Company shall, upon exercise of any options, deliver the
stock certificates to you within ten (10) days. In addition, you shall have
ninety (90) days from August 31, 1997, in which to exercise all options to which
are now vested as well as any options you are permitted to purchase pursuant to
this Agreement. Further, the Company has accelerated the vesting on a previously
unvested option to purchase 45,000 shares of Common Stock to November 15, 1996.
This option has an exercise price of $0.20 per share.
As you have been made aware, all of your employee benefits
ceased at the close of business on November 15, 1996. You may continue group
medical coverage for you and your eligible dependents at your own expense
pursuant to the Consolidated Omnibus Budget Reconciliation Act ("COBRA").
The Company, at its expense, will reimburse you for
out-placement benefits. The cost of such services shall not exceed $12,000. In
addition, the Company shall authorize the executive search firms with which it
regularly does business to assist you in seeking new employment.
It is further agreed that you will direct all reference
requests to the Human Resources Department at the Company's headquarters in
Princeton, New Jersey. Provided that the Company receives a written release from
you it will respond to any written reference request by indicating: the dates of
your employment; position title; and if expressly released, your level of
compensation. Moreover, it is expressly agreed that reference requests directed
to Company employees other than the Human Resources Department in Princeton, New
Jersey are not covered by this Agreement and the Company bears no liability for
statements made by such employees.
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You warrant and represent that you have been compensated in
full for your employment at the Company and, therefore, have no claims for
unpaid wages or bonuses past, present or future; that the payments set forth
above fully satisfy all claims of any kind or description and that you hereby
waive any right to additional payments and benefits of any kind, with the
exception of any vested benefits you may have under the Company's existing
benefit plans and those benefits expressly described herein which extend beyond
the date of your termination. Your rights relative to any vested benefits are
subject to the terms and conditions contained in such plans. You fully recognize
and agree that the payments set forth herein exceed that to which you are
entitled by Company policy and such payments are made in full and complete
satisfaction of any and all claims of any kind against the Company, arising from
your employment and/or separation from employment with the Company.
In exchange for the Company providing you with the
above-referenced termination benefits, which are more than you would otherwise
be entitled under Company policy, you hereby waive all claims against the
Company and release and discharge the Company from liability for any claims or
damages that you may have against it as of the date of this Agreement, whether
known or unknown to you including, but not limited to, any claims arising out of
your employment relationship with and termination from the Company, or any
alleged violations of any federal, state or local fair employment practices law,
including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1866, the Civil Rights Act of 1991, the Age Discrimination in Employment Act as
amended by the Older Worker Benefit Protection Act, the Americans with
Disabilities Act, the Employee Retirement and Income Security Act of 1974, the
New Jersey Law Against Discrimination or any other employee relations statute,
rule, executive order, law or ordinance, tort, express or implied contract,
public policy, or other obligations, including claims for physical or emotional
distress or injuries or any other duty or obligation of any kind or description
including costs, expenses or attorneys' fees.
In consideration for your entering into this Agreement, the
Company agrees to waive all claims against you and release and discharge you
from liability from any claims or damages that the
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Company may have against you as of the date of this Agreement, whether known or
unknown to the Company.
By entering into this Agreement, the Company does not admit,
and denies, any liability or wrongdoing, or violation of any law, statute,
order, regulation or policy. It is expressly understood and agreed that this
Agreement is being entered into solely for the purpose of amicably resolving all
matters, controversies, disputes, causes of action, claims, contentions and
differences of any kind whatsoever which have been or could have been alleged
against the Company. You acknowledge that the payments made hereunder are not
part of a group exit incentive or other employment termination program offered
to a group or class of employees.
It is understood and agreed that at the execution of this
Agreement you will return to the Company all Company property including, but not
limited to, laptop computers, files, papers, memoranda, letters, handbooks,
manuals, computer files, Company databases, publications, facsimile or other
communications that were written, authorized, signed, received, created or
transmitted during or prior to your employment. Such things and documents are
and remain the property of the Company and, as such, are to be returned to a
Company representative at a mutually convenient time prior to January 8, 1997.
You agree that you will not disclose or cause to be disclosed for any purpose
whatsoever, any confidential information or confidential documents or
confidential operations of the Company, including but not limited to computer
files, systems, Company databases, client lists, product development data,
financial information about clients, including any current and prior
transactions, deals, and trades on which you have worked or have been involved
during the course of your employment, unless such matters are then widely known
to the public.
The parties represent that they are not currently involved,
directly or indirectly in any legal or administrative proceedings against one
another, and except for the purpose of seeking enforcement of the terms of this
Agreement, you stipulate and agree that you will not file or institute or cause
to have filed or instituted any civil action, complaint, charge, arbitration or
other proceedings of any nature or
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description against the Company before any judicial, administrative, arbitral or
other forum based upon or arising out of any claims, whether asserted or
unasserted, that you may have against the Company as of the date of this
Agreement.
In addition, you agree that you will not voluntarily
participate or assist in any judicial, administrative, arbitral or other
proceedings of any nature or description against the Company brought by or on
behalf of any administrative agencies, employees or former employees other than
pursuant to a subpoena or court order. If you are served with a legal demand or
otherwise contacted and requested to appear or participate in any judicial,
administrative, arbitral or other proceedings of any nature or description
against the Company, you will provide the Company ten (10) days' written notice
prior to the time to appear or otherwise respond to any demand to appear or
participate, so that the Company may protect its rights hereunder. Such notice
shall be provided in writing to the Company within ten (10) days of service on
you of such subpoena, court order or request and shall be delivered personally
or sent by registered or certified mail, return receipt requested, to Winston &
Xxxxxx 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxxx X.
Xxxxxxx, Esq. and to Logic Works, Inc., University Square at Princeton, 000
Xxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx,
Executive Vice President and Chief Financial Officer. If the demand requires
disclosure less than ten (10) days after receipt of notice, you may appear,
provided you notify both Messrs. Xxxxxxx and Xxxxxx immediately, after receipt
of notice. In any appearance, unless or until ordered by a court otherwise, you
may only state that you have entered into an agreement settling your claims and
that you are bound by the confidentiality provisions of that agreement from
testifying further.
It is further agreed that all settlement discussions and
matters leading up to and including this Agreement are strictly confidential.
The parties further agree that neither they nor their representatives will
disclose any information regarding the existence or the terms of this Agreement,
and the facts and circumstances underlying the allegations leading to such
Agreement; provided, however, that this paragraph shall not limit in any way the
Company's right to disclose the terms, amount, and existence of
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this Agreement to its officers or agents for the purpose of complying with and
effectuating the terms of this Agreement, or appropriate regulatory authorities
or as otherwise required by law. This paragraph shall not limit you from
disclosing the terms, amount, and fact of this Agreement to your attorney, tax
preparer or immediate family members and as is otherwise required by law. You
further agree that you will cooperate fully with the Company in connection with
any existing or future litigation involving the Company, whether administrative,
civil, or criminal in nature, in which, and to the extent, the Company deems
your cooperation necessary.
We mutually agree that neither party to this Agreement, nor
their representative, will publicly disparage or criticize the other. You
expressly agree that neither you nor your representative will publicly or
privately disparage or criticize the Company and you expressly agree that you
will not publicly, by way of press release or otherwise, or privately disparage
any of the Company's products, services, branches, subsidiaries, divisions,
affiliates, related companies, or current or former officers, directors,
trustees, employees, agents administrators, representatives or fiduciaries.
You acknowledge that a breach of any of the covenants
contained herein would cause great damage and injury to the Company and that
such provisions provide a material element of the Company's consideration for an
inducement to enter into this Agreement. Accordingly, it is expressly understood
and agreed that if the Company establishes in a proceeding, brought to enforce
the terms of this Agreement, that there is a material breach by you, i.e.,
filing a claim which is covered by this Agreement; participating voluntarily in
an action against the Company; or breaching either the confidentiality or public
statements clauses herein, then the Company may, in addition to pursuing any
other remedies that it may have in law or in equity, obtain an injunction
against you from any court having jurisdiction over this matter, restraining any
further violation of this Agreement. Your breach of any provision of this
Agreement, the Company's pursuit of its rights hereunder, if any, by you shall
not affect this Agreement, which shall remain in full force and effect.
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You acknowledge that you have afforded at least 21 days to
consider the terms of this Agreement and that you were advised to consult with
an attorney not connected with the Company regarding this agreement and that you
are entering into this Agreement freely, knowingly and voluntarily with a full
understanding of its terms. You also acknowledge that you have seven days from
the date of execution of this Agreement to revoke it by notifying me in writing.
The terms of this Agreement, including all facts,
circumstances, statements, and documents relating thereto, shall not be used as
a precedent in further proceedings involving any or all of the parties hereto,
nor shall the parties seek to have the terms of this Agreement admitted in any
forum in any litigation for any purpose other than to secure enforcement of the
terms and conditions of this Agreement, except as otherwise provided by law or
as otherwise set forth in the foregoing paragraphs.
This Agreement may not be changed or altered, except by a
writing signed by the Company and you. This Agreement is entered into in the
State of New Jersey and the laws of the State of New Jersey, without regard to
its conflicts of law provisions, will apply to any dispute concerning it. If any
clause of this Agreement should ever be determined to be unenforceable, it is
agreed that this will not affect the enforceability of any other clause or the
remainder of this Agreement. This Agreement contains the entire agreement
between the parties and supersedes any and all prior agreements or
understandings, whether written or oral between you and the Company.
Very truly yours,
/s/XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Executive Vice President
Chief Financial Officer
AGREED AND ACCEPTED:
BY: /s/XXXXX X. XXXXX, XX. April 1, 1997
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Xxxxx X. Xxxxx, Xx. Date
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