Exhibit 10.1
October 26, 2005
Xxxxx Xxxxx
00 Xxxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Dear Xxxxx:
As a result of Applix, Inc.'s (the "Company's") decision to reorganize the
Product Development department to better position itself in the marketplace, you
and the Company have mutually agreed to terminate your position. Therefore, your
employment with the Company will terminate effective November 30, 2005. In
connection with this termination, you are eligible to receive the severance
benefits described in the "Description of Severance Benefits" attached to this
letter agreement as Attachment A if you sign and return this letter agreement in
the enclosed envelope to Xxxxx Xxxxx, Vice President, Human Resources, by
November 17, 2005. By signing and returning this letter agreement, you will be
entering into a binding agreement with the Company and will be agreeing to the
terms and conditions set forth in the numbered paragraphs below, including the
release of claims set forth in paragraph 3. Therefore, you are advised to
consult with your attorney before signing this letter agreement and you may take
up to twenty one (21) days to do so. If you sign this letter agreement, you may
change your mind and revoke your agreement during the seven (7) day period after
you have signed it. If you do not so revoke, this letter agreement will become a
binding agreement between you and the Company upon the expiration of the seven
(7) day revocation period.
If you choose not to sign and return this letter agreement by November 17, 2005,
you will still receive payment on your termination date for any wages and unused
vacation time accrued through the termination date but will not receive any
severance payments. Also, regardless of signing this letter agreement, you may
elect to continue receiving group medical insurance pursuant to the federal
"COBRA" law, 29 U.S.C. Section 1161 et seq. All premium costs shall be paid by
you on a monthly basis for as long as, and to the extent that, you remain
eligible for COBRA continuation coverage. However, if you execute this letter
agreement, the Company will continue to pay for your COBRA continuation coverage
at the current Applix rate for fifteen (15) weeks from the termination date
provided that you elect and remain eligible for such coverage. For the fifteen
weeks that the Company pays for your medical and dental coverage, you will be
responsible for paying your current employee benefit premium which will be
deducted from your severance checks. You should consult the COBRA materials to
be provided by the Company and CobraServe for details regarding COBRA
continuation benefits. All other benefits, including life insurance and
long-term disability insurance, will cease upon your termination date in
accordance with the plans.
Pursuant to the Applix, Inc. 1994 Incentive Stock Option Plan and the Applix,
Inc. 2004 Equity Incentive Plan, you will have ninety (90) days after your
termination date to exercise any and all of your stock options vested up through
your termination date.
Furthermore, in exchange for your execution of the letter agreement, Applix will
allow you to vest additional stock options after your termination date. All
unvested stock options will continue to vest during the 15 week severance period
from December 1, 2005 through March 15, 2006. Additionally, stock options which
are scheduled to vest in 2006 subsequent to the severance period, including
1,875 stock options due to vest on 7/7/2006 and the 10,937 stock options that
were due to vest on 8/5/2006, will immediately vest on March 15, 2006. You will
have thirty (30) days from the end of your severance period on March 15, 2006
(April 14, 2006) to exercise these additional vested options.
Your Life/AD&D and Long Term Disability coverage will terminate on November 30,
2005, however you have a 30-day conversion privilege for the life insurance
benefit. Please contact Xxxxxx XxXxxxx at 000-000-0000 if you would like to
convert the above benefits to a non-group policy.
In accordance with IRS regulation, since your current balance in the Applix
401(k) plan is more than $1,000.00, you may leave your remaining funds in
Applix's plan with Fidelity. If you choose to rollover/withdraw your funds,
please see the enclosed directions. Please contact Xxxxxx XxXxxxx with
questions.
If, after reviewing this letter agreement with your attorney, you find that the
terms and conditions are satisfactory to you, you must sign and return this
letter agreement in the enclosed envelope to Xxxxx Xxxxx by November 17, 2005.
The following numbered paragraphs set forth the terms and conditions that will
apply if you timely sign and return this letter agreement:
1. TERMINATION DATE - Your effective date of termination from the Company is
November 30, 2005 (the "termination date"). As specified in the
Change-in-Control Agreement between Applix Inc. and Xxxxx Xxxxx dated
April 9, 2003, the agreement will terminate upon your termination date.
2. DESCRIPTION OF SEVERANCE BENEFITS - The severance benefits to be paid to
you if you sign and return this letter agreement by November 17, 2005 is
described in the "Description of Severance Benefits" attached as
Attachment A (the "severance benefits").
3. RELEASE - In consideration of the payment of the severance benefits
(described in Attachment A), which you acknowledge you would not otherwise
be entitled to receive, you hereby fully, forever, irrevocably and
unconditionally release, remise and discharge the Company, its officers,
directors, stockholders, corporate affiliates, subsidiaries, parent
companies, agents and employees (each in their individual and corporate
capacities) (hereinafter, the "Released Parties") from any and all claims,
charges, complaints, demands, actions, causes of action, suits, rights,
debts, sums of money, costs, accounts, reckonings, covenants, contracts,
agreements, promises, doings, omissions, damages, executions, obligations,
liabilities, and expenses (including attorneys' fees and costs), of every
kind and nature that you ever had or now have against the Released Parties
arising out of your employment with and/or separation from the Company,
including, but not limited to, all employment discrimination claims under
Title VII of the Civil Rights Act
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of 1964 42 U.S.C. Section 2000 et seq.,the Age Discrimination in
Employment Act, 29 U.S.C. Section 621 et seq., the Americans With
Disabilities Act of 1990, 42 U.S.C. Section 12101 et seq., the Family and
Medical Leave Act, 29 U.S.C. Section 2601 et seq., the Rehabilitation Act
of 1973, 29 U.S.C. Section 701 et seq., the Worker Adjustment and
Retraining Notification Act ("WARN"), 29 U.S.C. Section 2101 et seq., the
Massachusetts Fair Employment Practices Act, M.G.L. c.151B, Section 1 et
seq., the Massachusetts Civil Rights Act, M.G.L. c.12, Sections 11H and
11I, the Massachusetts Equal Rights Act, M.G.L. c.93, Section 102 and
M.G.L. c.214, Section 1C, the Massachusetts Labor and Industries Act,
M.G.L. c.149, Section 1 et seq., the Massachusetts Privacy Act, M.G.L.
c.214, Section 1B and the Massachusetts Maternity Leave Act, M.G.L. c.149,
Section 105(d), all as amended, and all claims arising out of the Fair
Credit Reporting Act, 15 U.S.C. Section 1681 et seq. and the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section 1001
et seq., all as amended, and all common law claims including, but not
limited to, actions in tort, defamation and breach of contract, all claims
to any non-vested ownership interest in the Company, contractual or
otherwise, including, but not limited to, claims to stock or stock
options, and any claim or damage arising out of your employment with
and/or separation from the Company (including a claim for retaliation)
under any common law theory or any federal, state or local statute or
ordinance not expressly referenced above; provided, however, that nothing
in this letter agreement prevents you from filing, cooperating with, or
participating in any proceeding before the EEOC or a state Fair Employment
Practices Agency (except that you acknowledge that you may not be able to
recover any monetary benefits in connection with any such claim, charge or
proceeding).
4. NONDISCLOSURE, NONCOMPETITION AND NONSOLICITATION - You acknowledge and
reaffirm your obligation to keep confidential all non-public information
concerning the Company that you acquired during the course of your
employment with the Company, as stated more fully in the Applix
Nondisclosure and Inventions Agreement (the "Agreement") you executed on
October 21, 1992, will remain in full force and effect.
5. RETURN OF COMPANY PROPERTY - You confirm that you have returned to the
Company in good working order all keys, files, records (and copies
thereof), equipment (including, but not limited to, computer hardware,
software and printers, wireless handheld devices, cellular phones and
pagers), Company identification, Company vehicles and any other
Company-owned property in your possession or control and have left intact
all electronic Company documents other than those destroyed according to
normal business practices, including, but not limited to, those that you
developed or helped develop during your employment. You further confirm
that you have cancelled all accounts for your benefit, if any, in the
Company's name, including, but not limited to, credit cards, telephone
charge cards, cellular phone and/or pager accounts and computer accounts.
6. FINAL COMPENSATION - You acknowledge that you have received payment in
full for all services rendered in conjunction with your employment by the
Company through October 15, 2005. Applix will continue to pay your current
base salary through November 30, 2005. The payroll dates will be Oct. 31,
2005, November 15, 2005 and November 30, 2005. In accordance with your
request, Applix will pay your final accrued vacation balance in the first
payroll period of January 2006. Additionally Applix will pay any earned Q3
2005 bonus in the payroll of November 15, 2005.
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7. NON-DISPARAGEMENT - You understand and agree that, as a condition for
payment to you of the consideration herein described, you shall not make
any false, disparaging or derogatory statements to any media outlet,
industry group, internet message boards, financial institution or current
or former employee, consultant, client or customer of the Company
regarding the Company or any of its directors, officers, employees, agents
or representatives or about the Company's business affairs and financial
condition.
8. AMENDMENT - This letter agreement shall be binding upon the parties and
may not be modified, supplemented, replaced or terminated in any manner,
except by an instrument in writing of concurrent or subsequent date signed
by duly authorized representatives of the parties hereto. This letter
agreement is binding upon and shall inure to the benefit of the parties
and their respective agents, assigns, heirs, executors, successors and
administrators.
9. WAIVER OF RIGHTS - No delay or omission by the Company in exercising any
right under this letter agreement shall operate as a waiver of that or any
other right. A waiver or consent given by the Company on any one occasion
shall be effective only in that instance and shall not be construed as a
bar to or waiver of any right on any other occasion.
10. VALIDITY - Should any provision of this letter agreement be declared or be
determined by any court of competent jurisdiction to be illegal or
invalid, the validity of the remaining parts, terms or provisions shall
not be affected thereby and said illegal or invalid part, term or
provision shall be deemed not to be a part of this letter agreement.
11. CONFIDENTIALITY - You understand and agree that, as a condition for
payment to you of the severance benefits herein described, the terms and
contents of this letter agreement, and the contents of the negotiations
and discussions resulting in this letter agreement, shall be maintained as
confidential by you and your agents and representatives and shall not be
disclosed except to the extent required by federal or state law or as
otherwise agreed to in writing by the Company. You must not disclose to
any other person any material nonpublic information concerning the Company
strategy or direction.
12. NATURE OF AGREEMENT - You understand and agree that this letter agreement
is a severance agreement and does not constitute an admission of liability
or wrongdoing on the part of the Company.
13. ACKNOWLEDGMENTS - You acknowledge that you have been given at least
twenty-one (21) days to consider this letter agreement, including
Attachment A, and that the Company advised you to consult with an attorney
of your own choosing prior to signing this letter agreement. You
understand that you may revoke this letter agreement for a period of seven
(7) days after you sign this letter agreement, and the letter agreement
shall not be effective or enforceable until the expiration of this seven
(7) day revocation period. You understand and agree that by entering into
this letter agreement you are waiving any and all rights or claims you
might have under The Age Discrimination in Employment Act, as amended by
The Older Workers Benefit Protection Act, and that you have received
consideration beyond that to which you were previously entitled
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14. VOLUNTARY ASSENT - You affirm that no other promises or agreements of any
kind have been made to or with you by any person or entity whatsoever to
cause you to sign this letter agreement, and that you fully understand the
meaning and intent of this letter agreement. You state and represent that
you have had an opportunity to discuss fully and review the terms of this
letter agreement with an attorney. You further state and represent that
you have carefully read this letter agreement, including Attachment A,
understand the contents herein, freely and voluntarily assent to all of
the terms and conditions hereof, and sign your name of your own free act.
15. APPLICABLE LAW - This letter agreement shall be interpreted and construed
by the laws of the Commonwealth of Massachusetts, without regard to
conflict of laws provisions. You hereby irrevocably submit to and
acknowledge and recognize the jurisdiction of the courts of the
Commonwealth of Massachusetts, or if appropriate, a federal court located
in Massachusetts (which courts, for purposes of this letter agreement, are
the only courts of competent jurisdiction), over any suit, action or other
proceeding arising out of, under or in connection with this letter
agreement or the subject matter hereof.
16. ENTIRE AGREEMENT - This letter agreement, including Attachments A,
contains and constitutes the entire understanding and agreement between
the parties hereto with respect to your severance benefits and the
settlement of claims against the Company and cancels all previous oral and
written negotiations, agreements, commitments, and writings in connection
therewith. Nothing in this paragraph, however, shall modify, cancel or
supersede your obligations set forth in paragraph 4 herein.
If you have any questions about the matters covered in this letter agreement,
please call me at (000) 000-0000.
Very truly yours,
By: /s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
Vice President, Human Resources
I hereby agree to the terms and conditions set forth above and in the attached
Description of Severance Benefits. I intend that this letter agreement become a
binding agreement between me and the Company.
/s/ Xxxxx Xxxxx Date October 26, 2005
---------------------------------- ----------------
Xxxxx Xxxxx
To be returned in the enclosed envelope by November 17, 2005.
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ATTACHMENT A
DESCRIPTION OF SEVERANCE BENEFITS
In exchange for your execution of this letter agreement, including, but not
limited to, your waiver and release of claims described in paragraph 3, the
Company shall pay you fifty seven thousand, six hundred and ninety two dollars
and thirty one cents ($57,692.31), less all applicable state and federal taxes
withheld therefrom by the Company, which represents fifteen (15) weeks of
severance pay (the "severance pay"). This severance pay shall be paid in
accordance with the Company's normal payroll practices after this letter
agreement becomes binding and enforceable. If you return your signed Separation
Agreement to Xxxxx Xxxxx by November 17, 2005, your first severance payment will
be processed in the December 15, 2005 payroll.
In exchange for your execution of the letter agreement, Applix will allow you to
vest additional stock options after your termination date. All unvested stock
options will continue to vest during the 15 week severance period from December
1, 2005 through March 15, 2006. Additionally, stock options which are scheduled
to vest in 2006 subsequent to the severance period, including 1,875 stock
options due to vest on 7/7/2006 and the 10,937 stock options that were due to
vest on 8/5/2006, will immediately vest on March 15, 2006. You will have thirty
(30) days from the end of your severance period on March 15, 2006 (April 14,
2006) to exercise these additional vested options.
In addition, if you choose to elect COBRA continuation, the Company will pay for
your COBRA continuation coverage for fifteen (15) weeks from the termination
date, provided that you remain eligible for such coverage. For the fifteen weeks
that the Company pays for your medical and dental coverage, you will be
responsible for paying the then current employee portion which will be deducted
from your severance checks. All premium costs after this fifteen (15) week
period shall be paid by you on a monthly basis for as long as, and to the extent
that, you remain eligible for COBRA continuation coverage. You should consult
the COBRA materials to be provided by the Company for details regarding COBRA
continuation benefits. The medical and dental premiums will like change on March
1, 2006.
All remaining severance payments end upon your commencement of a new position.
If the newly accepted position's base salary is lower than the base salary at
Applix, Xxxxxx agrees to make up the difference between the new base salary and
the base salary at Applix ($200,000) for the remaining term of the severance.
You must immediately contact Xxxxx Xxxxx as soon as a new position is accepted.
Applix contributions towards your benefits will also cease upon starting a new
position or at the end of the severance period which ever comes first.
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