To: William R. Wolff Re: Separation Agreement and Release Dear Bill:
Exhibit
10.1
October
25, 2006
Via
Messenger
Personal
and Confidential
To: Xxxxxxx
X. Xxxxx
Re: Separation
Agreement and Release
Dear
Xxxx:
As
you
know, your employment with MakeMusic, Inc. (“MakeMusic”) will end effective at
the close of business on December 18, 2006. The purpose of this Separation
Agreement and Release letter (“Agreement”) is to set forth the specific
separation pay that MakeMusic will provide you pursuant to Section 3.02(d)
of
your Employment Agreement with MakeMusic dated June 9, 2004 (your “Employment
Agreement”), provided you agree to the terms and conditions of this
Agreement.
You
are
being provided this Agreement now for your review and initial agreement. We
ask
that you indicate your agreement to this Agreement no later than November 15,
2006, by signing, dating and returning the first signature block at the end
of
this Agreement. To finalize this Agreement, sometime between December 18, 2006
and January 8, 2007, you must sign, date and return the second signature block
at the end of this Agreement.
By
your
signature below, you agree to the following terms and conditions:
1. End
of
Employment.
a. Your
employment with MakeMusic will end effective at the close of business on
December 18, 2006. You will be on a paid leave of absence through December
18,
2006. You will remain on MakeMusic’s payroll and covered by MakeMusic’s benefits
through December 18, 2006.
b. Upon
your
receipt of your final paycheck which includes payment for services through
December 18, 2006, you will have received all wages owed to you by virtue of
your employment with MakeMusic or separation thereof.
c. Upon
your
receipt of payment from MakeMusic in the amount of $20,075.13, less applicable
deductions and withholding, which represents payment for 229.43 hours of accrued
(accrued through December 18, 2006) 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 separation thereof.
Page
2
d. In
January 2007, MakeMusic will calculate your calendar year 2006 bonus in
accordance with the applicable bonus criteria as if you had remained employed
by
MakeMusic through December 31, 2006. Such bonus will be paid to you on or before
March 31, 2007.
e. The
COBRA
period for continuation of your insurance coverage under MakeMusic’s group plans
at your expense will begin on January 1, 2007. Information regarding your right
to elect COBRA coverage will be sent to you via separate letter.
f. Your
rights with regard your stock options with MakeMusic are governed by your
separate stock option agreements with MakeMusic.
g. Effective
October 19, 2006, you resigned from your positions as Chairman of the Board
of
MakeMusic and a member of MakeMusic’s Board of Directors.
You
are
not eligible for any other payments or benefits by virtue of your employment
with MakeMusic or separation thereof except for those expressly described in
this Agreement. You will not receive the payments described in Section 2 if
you
(i) do not sign this Agreement by the due dates indicated, (ii) rescind this
Agreement after signing it, or (iii) violate any of the terms and conditions
set
forth in this Agreement.
2. Separation
Pay.
Specifically in consideration of your signing this Agreement and subject to
the
limitations, obligations, and other provisions contained in this Agreement,
MakeMusic agrees to pay you twelve (12) months of separation pay at your ending
base salary for the period from December 19, 2006 through December 18, 2007,
in
the gross amount of One Hundred Eighty-Two Thousand and 00/100 Dollars
($182,000), 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 December 19, 2006.
3.
Release
of Claims.
Specifically in consideration of the separation pay described in Section 2,
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 xxx, 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.
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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 et seq.,
Title
VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,
the
Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000 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 Xxx, 00 X.X.X. § 0000 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. If you file, or have filed on your behalf,
a charge (including, without limitation, a charge of discrimination with the
Equal Employment Opportunity Commission), complaint, or action, you agree that
the payments 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 specifically promised to you under
this
Agreement, (4) the right to institute legal action for the purpose of enforcing
the provisions of this Agreement, (5) any rights under your separate stock
option agreements with the Company, (6) any rights under workers compensation
benefit laws, or (7) 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.
Page 4
4. Notice
of Right to Consult Attorney and Twenty-One (21) Calendar Day Consideration
Period.
By
signing this Agreement, you acknowledge and agree that MakeMusic 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 December 18, 2006 to consider whether the
terms are acceptable to you. You have the right, if you choose, to sign this
Agreement prior to the expiration of the twenty-one (21) day period. You may
not, however, execute the second signature block of this Agreement until
sometime between December 18, 2006 and January 8, 2007.
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 the second signature block of 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 the second signature block of 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 described in Section
2
and you will be obligated to return any such payments 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. Subject to the exceptions noted below in
this Section 6, 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 keys, access cards, credit cards, 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. Notwithstanding the foregoing, MakeMusic acknowledges and agrees
that
you need not return, and MakeMusic is giving you free of charge, the following
items currently in your possession: Viao
Laptop - model # VGN TX670P, Sony monitor, and docking
station.
7. On-Going
Obligations.
You are
hereby reminded of your on-going obligations to MakeMusic under Articles IV,
V
and VI of your Employment Agreement. You acknowledge and agree that if you
violate Article IV, V and/or VI of your Employment Agreement, MakeMusic shall
be
entitled to all available legal and equitable remedies, including but not
limited to suspending and recovering any and all payments made or to be made
under Section 2 of this Agreement.
Page 5
8. Non-Disparagement
and Confidentiality.
You
promise and agree not to disparage MakeMusic, its shareholders, officers,
directors, employees, customers, products or services. You also promise and
agree not to disclose or discuss, directly or indirectly, in any manner
whatsoever, any information regarding either (1) the contents and terms of
this
Agreement, or (2) 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 the following agreements which shall remain in full force
and
effect: your separate stock option agreements with MakeMusic and Articles I
and
IV - IX of your Employment Agreement.
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 January 8, 2007. 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 no later than November 15, 2006, by
signing, dating and returning the first signature block at the end of this
Agreement. To finalize this Agreement, sometime between December 18, 2006 and
January 8, 2007, you must sign, date and return the second signature block
at
the end of this Agreement.
Xxxx,
we
thank you for your contributions to MakeMusic and wish you all the best both
personally and professionally.
Sincerely,
/s/
Xxxx
Xxxxxxx
Xxxx
Xxxxxxx
CEO
FIRST
ACKNOWLEDGMENT AND SIGNATURE
By
signing below, I, Xxxxxxx X. Xxxxx, acknowledge and agree to the
following:
| · |
I
have read this Separation Agreement and Release
carefully.
|
| · |
I
agree that this Separation Agreement and Release accurately reflects
the
agreement between me and MakeMusic with regard to the separation of
my
employment.
|
| · |
I
will execute and return to MakeMusic the “Second Acknowledgment and
Signature” sometime between December 18, 2006 and January 8, 2007.
|
Accepted
this 26th day of October, 2006.
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
[Second
Signature Block Follows On Next Page]
Page
7
SECOND
ACKNOWLEDGMENT AND SIGNATURE
By
signing below, I, Xxxxxxx X. Xxxxx, 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 19th day of December, 2006.
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
