Exhibit 10.1
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SEVERANCE AGREEMENT AND GENERAL RELEASE
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This severance agreement and general release (the "Agreement") by and between
Xxxxxxx X. Xxxxxx ("Executive") and MathSoft, Inc., currently doing business as
Insightful Corporation (the "Company") regarding Executive's separation from
employment is effective as of February 5, 2001 in accordance with Section 12.
For good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. Employment Status: Executive's employment as the President and
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Chief Executive Officer of the Company shall cease on January 31, 2001 (the
"Termination Date"). As of the Termination Date, Executive's salary and
benefits will cease, and any entitlement Executive has or might have under a
Company-provided benefit plan, program or practice will terminate, except as
required by federal or state law, or as otherwise described below. Executive
shall be paid all salary due through the Termination Date, and shall be entitled
to receive a payment representing any earned but unused accrued vacation time
through the Termination Date in accordance with the Company's standard vacation
policy.
2. Consideration:
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(a) Severance Payments: In consideration for Executive's execution
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of this Agreement, including specifically the release provisions in Sections 4,
5 and 7, the Company agrees to pay the Executive salary continuation payments
for eighteen (18) months at the rate of $20,833.33 per month in accordance with
the Company's normal payroll practices and policies in effect from time to time
following the Effective Date, as defined below; provided, however, that the
Company shall not be obligated to make any payments pursuant to this Section
2(a) during any period in which the Executive is in violation of the terms of
his Confidential Information, Inventions and Non-Competition Agreement with the
Company. All amounts set forth in this Section 2 are subject to any applicable
federal, state and local deductions, withholdings, payroll and other taxes.
(b) Health Benefits: The Termination Date will serve as the
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"qualifying event" under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA"). If Executive elects to continue medical and/or dental insurance
coverage in accordance with the provisions of COBRA, under the same plans
available to active Company employees and under the same rules, restrictions and
regulations applicable thereto, the Company shall make premium payments on
Executive's behalf until the earlier of the date which is (i) eighteen (18)
months from the Termination Date (i.e., until July 31, 2002); (ii) the date the
Executive secures alternative medical insurance coverage from a subsequent
employer, but only if such coverage is equal to or better than that currently
provided by MathSoft; or (iii) the date coverage would otherwise terminate under
COBRA. The Company will make such payments directly to the insurer for
coverage. Thereafter, Executive will be responsible for any and all payments
for the elected period of continued health insurance coverage under COBRA.
Executive will receive additional COBRA information under separate cover.
(c) EXERCISE OF OPTIONS. The Executive shall have three years to
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exercise any then-exercisable, unexpired installments of any stock options held
by the Executive on the Termination Date, or, if later, 90 days from the date
when the Executive ceases to be a member of the Board of Directors of the
Company or otherwise ceases to maintain a "Business Relationship" with the
Company as defined in the Company's Amended and Restated 1992 Stock Plan or any
successor plan (the "Company Plan").
3. SETTLEMENT OF AMOUNTS DUE: The amounts set forth above shall be
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complete and unconditional payment, settlement, satisfaction and/or accord with
respect to all obligations and liabilities of the Releasees (as defined in
Section 5) to Executive, and with respect to all claims, causes of action and
damages that could be asserted by Executive against the Releasees regarding
Executive's employment with, change in employment status with, and/or
termination from employment with the Company, including, without limitation, all
claims for wages, wage increases, salary, commissions, draws, incentive pay,
bonuses, reasonable business expenses, paid time off, stock and stock options,
severance pay, attorneys' fees, compensatory damages, exemplary damages, or
other compensation, benefits, costs or sums.
4. MEMBERSHIP ON THE BOARD OF DIRECTORS: The Company has requested,
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and the Executive has agreed, that the Executive continue to serve on the Board
of Directors of the Company. The Executive shall continue to be considered to
be maintaining a "business relationship" with the Company during such period of
service as defined in the Company Plan, and any installments of any stock
options held by the Executive on the termination of his employment that are not
exercisable and have not expired shall continue to become exercisable in
accordance with the terms of the relevant option agreements and option plans
during such period of service.
5. PROMISSORY NOTE: Notwithstanding anything in this Agreement or the
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Letter Agreement (as defined below), that certain Promissory Note dated June 19,
2000 by the Executive in favor of the Company in the principal amount of
$550,000 and that certain Pledge Agreement dated June 19, 2000 by and between
Executive and the Company (the "Note and Pledge Agreement") remain in full force
and effect.
6. Release:
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(a) General Release: In exchange for the payments and benefits
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described in Section 3 hereof, and other good and valuable consideration, the
receipt of which is hereby acknowledged, Executive and his representatives,
agents, estate, heirs, successors and assigns ("Releasors") absolutely and
unconditionally hereby release, remise, discharge, indemnify and hold harmless
the Releasees (defined to include MathSoft, Inc., (currently doing business as
Insightful Corporation) its predecessors, parents, subsidiaries, divisions,
affiliates, successors or assigns, and its and their respective current and/or
former partners, directors, trustees, investors, stockholders, officers,
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employees, attorneys and/or agents, all both individually and in their official
capacities) from any and all actions or causes of action, suits, claims,
complaints, contracts, liabilities, agreements, promises, contracts, torts,
debts, damages, controversies, judgments, rights and demands, whether existing
or contingent, known or unknown, suspected or unsuspected, in law or equity,
which arise out of Executive's employment with, change in employment status with
and/or termination of employment from the Company. This release is intended by
Releasors to be all encompassing and to act as a full and total release of any
claims Releasors have, may have or have had against the Releasees from the
beginning of the World to the date of this Agreement, including, but not limited
to, claims under any federal, state or local constitution, statute, law,
ordinance, bylaw or regulation dealing with either employment, employment
discrimination, retaliation and/or employment benefits including, without
limitation those laws, statutes or regulations concerning discrimination on the
basis of race, color, marital status, creed, religion, age, sex, sex harassment,
sexual orientation, national origin, ancestry, handicap or disability, medical
or genetic condition, veteran status or any military service or application for
military service, or any category protected by federal, state or local law; any
federal, state or local law or regulation concerning securities, stock or stock
options; any contract (specifically including Executive's Amended and Restated
Executive Agreement dated as of November 23, 1998), whether oral or written,
express or implied; any tort; or common law.
(b) Release of Claims by Others: Releasors not only release and
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discharge the Releasees from any and all claims as stated above that Executive
could make on his own behalf or on behalf of others, but also specifically
waives any right to recover any damage awards as a member of any class in a case
in which any claim(s) against the Releasees are made involving any matters
concerning Executive's employment or termination thereof and/or his (or his
family's) ownership of Company stock or stock options.
7. Waiver of Rights/Claims Under the Age Discrimination in Employment
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Act:
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Since Executive is 40 years of age or older, he is hereby informed that he
has or might have specific rights and/or claims under the Age Discrimination and
Employment Act of 1967, as amended (the "ADEA"), and Executive agrees and
understands that:
(a) in consideration of the amounts described in Section 2 of this
Agreement, which are in addition to anything of value to which he is already
entitled, he specifically waives any rights and/or claims under ADEA to the
extent that such rights and/or claims arose prior to the date this Agreement was
executed;
(b) Executive does not waive any rights or claims under the ADEA
that may arise after the date this Agreement is executed;
(c) Executive is hereby advised that he has 21-days within which
to consider this Agreement's terms and to consult with or seek advice from
counsel prior to executing this Agreement;
(d) Executive has not been subject to any undue or improper
influence interfering with the exercise of his free will in deciding whether to
execute this Agreement;
(e) Executive has read carefully and fully understands all of the
terms set forth in this Agreement, and he knowingly and voluntarily agrees to
all such terms; and
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(f) the 21-day review period will not be affected or extended by
any revisions which might be made to this Agreement.
8. Proprietary and Company Materials: Except as agreed in writing by
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the Company and the Executive pursuant to Executive's responsibilities as the
Chairman of the Board of Directors, on the Termination Date, Executive will
return to the Company all Company property and materials, including but not
limited to, personal computers, laptops, fax machines, scanners, copiers,
cellular phones, Company credit cards and telephone charge cards, manuals,
building keys and passes, courtesy parking passes, diskettes, intangible
information stored on diskettes, software programs and data compiled with the
use of those programs, software passwords or codes, tangible copies of trade
secrets and confidential information, sales forecasts, names and addresses of
Company customers and potential customers, customer lists, customer contacts,
sales information, sales forecasts, memoranda, sales brochures, business or
marketing plans, reports, projections, and any and all other information or
property previously or currently held or used by Executive that is or was
related to Executive's employment with the Company ("Company Property").
Executive agrees that in the event that he discovers any other Company Property
in his possession after the Termination Date, he will immediately return such
materials to the Company. Notwithstanding the foregoing, as the Executive and
Company contemplate an ongoing relationship, Executive agrees to return any
Company Property in his possession upon the cessation of his service on the
Board of Directors of the Company.
9. Unknown Claims Released: Executive understands that in Paragraphs 4,
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6 and 7, he is releasing claims that he may not know about. This is Executive's
knowing and voluntary intent, even though he recognizes that someday he might
learn that some or all of the facts he currently believes to be true are untrue
and even though he might then regret having signed this Agreement.
Nevertheless, Executive assumes that risk and agrees that this Agreement shall
remain effective in all respects in any such case. Executive expressly waives
all rights he might have under any law that is intended to protect him from
waiving unknown claims, and he understands the significance of doing so.
10. Non-Disparagement and Confidentiality: Executive agrees not to
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make any negative, adverse or otherwise detrimental remarks concerning the
Company's employees, officers, directors, shareholders, business, operations,
technologies, products, services, marketing strategies, pricing policies,
management, affairs and financial condition. The Company and its officers agree
not to make any negative, adverse or otherwise detrimental remarks regarding
Executive. Executive agrees that he shall not divulge or publish, directly or
indirectly, any information whatsoever regarding the substance, terms or
existence of this Agreement and/or any discussions relating to this Agreement,
to any person or organization other than Executive's attorney, accountant,
financial advisor or members of Executive's immediate family until such time as
Company shall have disclosed such Agreement in a filing with the Securities and
Exchange Commission if required. Nothing herein shall prohibit or bar Executive
from providing truthful testimony in any legal proceeding or in communicating
with any governmental agency or representative or from making any truthful
disclosure required, authorized or permitted under law; provided however, that
in providing such testimony or making such disclosures or communications,
Executive will use his best efforts to ensure that this Section is complied with
to the maximum extent possible.
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11. Nonadmission: Nothing in this Agreement nor any of its terms and
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provisions, nor any of the negotiations or proceedings connected with it,
constitutes, will be construed to constitute, will be offered in evidence as,
received in evidence as and/or deemed to be evidence of an admission of
liability or wrongdoing by any and/or all of the Releasees, and any such
liability or wrongdoing is hereby expressly denied by each of the Releasees.
12. Representations and Governing Law:
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(a) This Agreement sets forth the complete and sole agreement between
the parties and supersedes any and all other agreements, understandings and/or
representations between or by the parties, whether oral or written; provided,
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however, that nothing in this Agreement will affect, modify, or supersede the
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letter agreement between the parties dated January __, 2001, relating to
consulting services to be performed while serving as Chairman of the Board (the
"Letter Agreement"), or the Note and Pledge Agreement as defined in Section 5,
or the Confidential Information, Inventions and Non-Competition Agreement, or
any stock option agreements issued by the Company to the Executive, each of
which shall remain in full force and effect in accordance with its respective
terms.
(b) This Agreement shall deemed to be made and entered into in the
Commonwealth of Massachusetts and shall in all respects be interpreted, enforced
and governed under the internal and domestic laws of Massachusetts without
giving effect to the principles of conflicts of law thereof. The language of
all parts of this Agreement shall in all cases be construed as a whole according
to its fair meaning and not strictly for or against any of the parties.
(c) This Agreement may not be changed, amended, modified, altered
or rescinded except upon the express written consent of both the Company's
President and Chief Executive Officer. If any provision of this Agreement, or
part thereof, is held invalid, void or voidable as against public policy or
otherwise, the invalidity shall not affect other provisions, or parts thereof,
which may be given effect without the invalid provision or part. To this
extent, the provisions, and parts thereof, of this Agreement are declared to be
severable. Any waiver of any provision of this Agreement shall not constitute a
waiver of any other provision of this Agreement unless expressly so indicated
otherwise.
(d) Executive may not assign any of his rights or delegate any of
his duties under this Agreement. The Company may assign this Agreement and the
rights and obligations of the Company under this Agreement shall inure to the
benefit of the Company's successors and assigns.
13. Effective Date: After signing this Agreement, Executive may revoke
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it for a period of seven (7) days following said signing. This Agreement shall
not become effective or enforceable and no payments will be made until the
revocation period has expired (the "Effective Date").
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EXECUTIVE REPRESENTS THAT HE HAS READ THIS AGREEMENT, THAT HE FULLY UNDERSTANDS
THE TERMS AND CONDITIONS OF SUCH AGREEMENT AND THAT HE IS VOLUNTARILY EXECUTING
THE SAME. IN ENTERING INTO THIS AGREEMENT, EXECUTIVE DOES NOT RELY ON ANY
REPRESENTATION, PROMISE OR INDUCEMENT MADE BY THE RELEASEES WITH THE EXCEPTION
OF THE CONSIDERATION DESCRIBED IN THIS DOCUMENT.
Executed this 29th day of January, 2001.
MathSoft, Inc.
(d/b/a Insightful Corporation)
By: /s/ Xxxxxx X. X'Xxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Title: Vice President and Chief Financial
Officer
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