Amended and Restated
Separation Agreement and Release
This Amended and Restated Separation Agreement and Release
entered into this 10th day of June, 1999, is made by and
between Inso Corporation ("the Company") and Xxxx X. Xxxxxx
("the Executive"), and hereby amends, supersedes and replaces
that certain Separation Agreement and Release, dated 30th day
of April, 1999, by and between the Company and the Executive,
and constitutes the parties' agreement with respect to the
termination of the Executive's employment.
1. The Executive voluntarily resigns as an officer of the
Company effective April 30,1999 ("the Resignation Date")
and as an employee with the Company (apart from holding an
office as aforesaid) twelve months thereafter or up to
eighteen months thereafter as described in paragraph 2,
whichever is greater ("the Termination Date"). Executive
shall execute and return to the Company the resignation
letter attached hereto as Exhibit A.
2. During the period between the Resignation Date and the
Termination Date ("the Interim Period"), Executive or
his estate shall continue to be paid his base salary
as in effect on the Resignation Date (reduced by any
amounts received under any disability insurance
program, or other income replacement program available
through the Company) in accordance with the Company's
normal and customary pay practices for executive
employees, subject to all applicable federal and state
income, payroll, and other applicable tax withholding.
During the Interim Period, the Executive shall perform
any special assignments reasonably requested by the
Chief Executive Officer or the President of the
Company at reasonable times and places mutually
agreeable to the parties. If Executive is not employed
by an employer other than the Company twelve months
from the Resignation Date, his base salary and
benefits, as described in the following paragraphs,
shall continue as aforesaid until the earlier of: a)
the expiration of eighteen months from the Resignation
Date, or b) the date of his employment by an employer
other than the Company, but in no case shall the
salary and aforementioned benefits continue for less
than twelve months from the Resignation Date. For
purposes of this Agreement self-employment shall not
be considered "employed by an employer other than the
Company".
3. During the Interim Period and any extended period if it
comes into being, and subject to the exceptions noted
below, Executive and his family shall be entitled to
continue his or their participation in the Company's
medical, dental, and vision care benefit plans to the
same extent, and under the same conditions, that he may
be a participant in such plans on the Resignation Date
regardless of the intervening death of Executive;
provided however, such participation shall cease on the
earlier of: (a) the Termination Date, and (b) the last
day of the month in which he may be covered by any plan,
program or arrangement, sponsored by another employer
offering similar coverage.
4. On the Termination Date, Executive shall be eligible to
continue medical, dental, and vision care benefits under
the provisions of COBRA, and he will be notified of his
COBRA rights at that time.
5. Executive's participation in Company benefit plans,
programs, and arrangements not enumerated in paragraph 3
above shall be as described in Attachment A: "Executive
Separation Agreement, Summary of Benefits Continuation".
Executive's entitlement to further vacation, sick leave
and other paid time off shall cease on the Resignation
Date. The Executive shall be entitled to one full week
of earned but unused vacation, which shall be paid to
him within 90 days of the Resignation Date.
6. Previously granted, but unexercised stock options held by
Executive for the purchase of stock of the Company shall
be exercisable pursuant to the terms of the Company's
stock option plan, for a period of 90 days after the
Termination Date or 180 days following the death of
Executive, as the case may be. All previously granted, but
unexercised stock options held by the Executive will
continue to vest over the Interim Period and will become
fully vested upon a change in control of the Company as
outlined in the Company's stock option plan.
7. Executive shall be entitled to an incentive compensation
payment of $32,000. This will be paid within 15 days of the
execution of this Agreement. Should Executive's base salary
continue beyond twelve months as described in the last
sentence of paragraph 2 above as a result of Executive not
being employed by an employer other than the Company twelve
months from the Termination Date, during such period an
additional $1,231 bonus adjustment will be added to each
bi-weekly salary payment until the earlier of: a) the
expiration of eighteen months from the Termination Date, or
b) the date of his employment by an employer other than the
Company.
8. Anything contained in paragraphs 14 and 15
notwithstanding, the Company and Executive shall
continue to be bound by the Non-Disclosure Agreement
executed by Executive on October 4, 1996, which
Agreement is incorporated herein by reference.
9. Upon request of Executive, the Company shall pay
for and retain a firm to provide Executive
Outplacement assistance, including but not limited
to resume preparation, administrative support, and
general continuing counseling up to 6 months.
10. From and after the date of this Agreement, the Executive
shall continue to be entitled to indemnification as an
"Officer" of the Company in accordance with Article V of
the Company's By-laws as in effect as of the date of this
Agreement notwithstanding any subsequent amendment to such
By-laws. The term "Officer" shall have the meaning set
forth in Article V of the Company's By-laws. With respect
to the action now pending in the United States District
Court for the District of Massachusetts under the caption
Xxxxxx X. Xxxxxxx v. Inso Corp., et al., 99 CV 10366 RCL,
and any action now pending or hereafter commenced relating
to the subject matter of that action, and with respect to
an informal investigation of the United States Securities
and Exchange Commission under the caption In the Matter of
Inso Corp. (B-1392), and any investigation or proceeding
now pending or hereafter commended relating to the subject
matter of that investigation, indemnification extended to
the Executive pursuant to this paragraph 10 shall also
include payment by the Company of all expenses (including
reasonable attorney fees) incurred by the Executive in
connection with any such action, investigation or
proceeding in advance of the final disposition of such
action, investigation or proceeding upon receipt of an
undertaking by the Executive to repay such advance payment
if the Executive shall be adjudicated or determined not to
be entitled to indemnification in accordance with Article
V of the Company's By-Laws.
11. Executive agrees to return to the Company prior to the Resignation Date,
all Companyproperty including, but not limited to, vendor, supplier,
and any other business or mailing lists, reports, files,
memoranda, records and software, credit cards, desk or
file keys, computer access codes or disks, and Company
manuals. Executive further agrees that he will not retain
any copies, duplicates, reproductions or excerpts of such
property. Notwithstanding the preceding, Executive shall
not be required to return to the Company the personal
computer and peripherals purchased by the Company and
currently set up for his home use. The Executive is
required to return to the Company the leased company car
no later than May 31, 1999.
12. Executive acknowledges that the Company will include a
copy of this Agreement as an exhibit to its Form 10-Q
for the fiscal quarter ending July 31, 1999. Until such
time as the Company includes a copy of this Agreement as
an exhibit to its Form 10-Q, the Executive and Company
represent and agree that they and their agents and
representatives shall keep completely and strictly
confidential the terms of this Agreement and any
settlement negotiations that occurred in connection with
this Agreement, except as required by law.
13. Executive for himself and on behalf of his heirs,
executors, administrators and assigns, hereby remises,
releases and fully discharges the Company and, to the
extent applicable, its present, former, and future parent
companies, subsidiaries and affiliates, and the officers,
directors, employees, agents, successors and assigns of
each of them ("the Released Parties") of and from any and
all claims, rights and causes of action of all nature
known, unknown, past, present, now foreseeable or
unforeseeable, which he has or may hereafter have, in any
way arising out of, connected with or related to
Executive's employment with any of the Released Parties,
the termination thereof or based upon information made
known to Executive during employment with any of the
Released Parties. This Release shall include, but not be
limited to, any claims, damages, rights and causes of
action for wrongful discharge, breach of contract,
discrimination or retaliation under any federal, state or
local laws, rules, orders or regulations including Title
VII the Civil Rights Act of 1964, 42 U.S.C.Sec. 200 et. seq.,
the Massachusetts Civil Rights Act, M.G.L.c. 12 Sec.11H and
11I, the Massachusetts Fair Employment Practices Act,
M.G.L.c. 151b, Sec. 1 et. seq., the Americans with Disabilities
Act, 29 U.S.C. Sec. 12101 et. seq., and the Massachusetts Equal
Rights Act, c.93, Sec. 102. This Release shall also include,
but not be limited to, all claims, rights and causes of
action for costs, attorney's fees, bounties, or percentage
of awards or settlements which Executive may assert against
or which may be asserted against the Company by others on
Executive's behalf, or against any of the Released Parties.
Executive and the Company intend and agree that this
Release is to be a broad Release to apply to any relief or
cause of action, no matter what it is called, and shall
include, but not be limited to, claims, rights or causes of
action for wages, benefits, bonuses, fines, back pay, share
of awards, compensatory damages, and punitive damages;
however, nothing in this Release shall be construed to bar
claims for alleged breaches of this Agreement.
14. The Company, on its behalf, and to the extent applicable,
on behalf of its present, former and future parent
companies, subsidiaries and affiliates, and officers,
directors, agents, successors and assigns of each of them
hereby remises, releases, and fully discharges Executive
of and from all claims, demands, causes of action, damages
and expenses, of any and every nature whatsoever, known or
unknown by the Company, past or present as a result of
actions, omissions or events occurring through the date of
this Agreement in connection with his employment with the
Company; however, nothing in this Release shall be
construed to bar claims for alleged breaches of this
Agreement.
15. Executive will not disparage or discuss the Company or
its agents, officers, servants or employees in a
derogatory manner. Executive will at all times state,
if asked, that the Company was and is a reputable
company during his employment with the Company and
that he was proud to have been associated with it. The
Company will not disparage or discuss the Executive in
a derogatory manner and will at all times state if
asked, that the Executive conducted himself honorably
and with distinction and is a reputable person.
16. The Executive herein represents that he has not filed
any complaints, charges or claims for release against
the Released Parties with any local, state, or federal
court or administrative agency which currently are
outstanding.
17. The payment by the Company of the consideration referred
to herein is not, and shall not be deemed, an admission
of responsibility or liability by any of the Released
Parties.
18. The Employee acknowledges that he has been given twenty-
one (21) days to consider this Agreement and has been
advised to consult with an attorney before signing.
19. This Agreement shall become effective on the eighth (8th)
day following the date on which it is signed by the
Employee. The Employee may revoke this Agreement in the
seven-day period following the date on which the Employee
signs the Agreement by submitting a written revocation to
the Company. Any payments due under this Agreement shall
not be paid until the Effective Date of this Agreement,
except as otherwise agreed.
20. Employee acknowledges that:
-He was advised to consult with an attorney to review
this Agreement prior to signing it, and was given a
chance to refuse to sign this Agreement.
- He has read and understands this Agreement and
understands fully its final and binding effect.
- None of the Released Parties had made any
statements, promises or representations not set
forth in this Agreement, and
Executive has not relied on any such
statements, promises or representations.
- He has voluntarily signed this Agreement with
the knowledge and understanding and full intention
of releasing the Released Parties as set forth
above.
21. This Agreement is binding upon and shall inure to the
benefits of the parties hereto and their respective
assigns, successors, heirs and personal representatives;
provided however that the Executive may not assign any
rights or duties it may have hereunder without prior
written consent of the Company.
22. If any provision of this Agreement is judicially
determined to be invalid or unenforceable as written, then
such provision shall, if possible, be modified and
reformed to the degree necessary to render it valid and
enforceable. Any such invalidity or unenforceability of
any provision shall have no effect on the remainder of
this Agreement which shall remain in full force and
effect.
23. This Agreement is to be governed and will be construed as a
sealed instrument under and in accordance with the laws of
the Commonwealth of Massachusetts.
24. This Agreement, together with the document incorporated
herein by reference, constitutes the entire agreement between
the parties hereto and supersedes all prior and contemporaneous
negotiations, representations, understandings and agreements,
whether written or oral.
IN WITNESS WHEREOF, the Company and Executive have entered into
this Agreement on the date first above written.
The Company The Executive
By: /s/ Xxxxxx Xxxxxxxxx /s/ Xxxx X. Xxxxxx
--------------------------- ---------------------
Xxxxxx Xxxxxxxxx Xxxx X. Xxxxxx
Attest:
/s/ Xxxxxxxx Xxxxxx
---------------------
Xxxxxxxx Xxxxxx
Entered into as of the 30th day of April, 1999
Inso Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Chairman of the Board of Directors of Inso
Corporation
Dear Xxxxx:
Effective April 30, 1999, I hereby resign my position as an
Officer of Inso Corporation, its subsidiaries and
affiliates, pursuant to the Separation Agreement and Release
entered into as of the 30th day of April, 1999.
Vice President, Inso Corporation
Sincerely,
/s/ Xxxx X. Xxxxxx
---------------------
Xxxx X. Xxxxxx
ATTACHMENT A
Period of Interim Termination of Employement
Employment
Begins upon resignation Begins at end of period
as officer of Company. of interim employment.
Ends at termination of
employment.
Medical, Dental and Coverage in effect upon Coverage continues for
Vision Care resignation may be 31 days following
continued at employee termination of
discretion for employment.
executive and covered
family members.
Employee shares cost on Employee may continue
same basis as active health coverage under
employees through provisions of COBRA by
payroll deduction. paying the applicable
premium.
Basic Life Basic life insurance Coverage continues for
coverage continues at 31 days following
level in effect upon termination of employment.
resignation.
Company pays entire Employee may convert all
cost of coverage. or part of insurance to
non-group coverage by
applying to the
insurance company
and paying the
applicable premium.
Optional Life Coverage in effect Coverage continues for
Employee/spouse/child upon resignation may 31 days following
be continued at termination of employment.
discretion of employee.
Employee pays entire Employee may convert all
cost of coverage or part of insurance to
through payroll non-group coverage by
deduction. applying to the
insurance company
and paying the
applicable premium.
Personal Accident Coverage in effect Coverage continues for
upon resignation may 31 days following
be continued at termination of employ-
discretion of employee ment.
Employee pays entire Employee may convert all
cost of coverage or part of insurance
through payroll to a non-group
deduction. coverage by applying to
the insurance company
and paying the
applicable premium.
Long Term Disability Coverage in effect upon Coverage continues for
resignation may be 31 days following
continued at discretion termination of employ-
of employee. ment.
Employee pays any
applicable share of the
cost on the same basis
as active employees
through payroll
deduction.
Health Care Account Participation in effect Participation ends at
upon resignation may be termination of employ-
continued at discretion ment.
of employee.
Employee may continue Employee may continue
to request reimbursement to request reimbursement
for eligible expenses for eligible expenses
incurred during period incurred prior to the
of participation. termination date.
Employee continues to Employee may continue
make contributions on participation under
same basis as active provisions of COBRA by
employees through making after-tax
payroll deduction. contributions to the
plan.
Dependent Care Account Participation ends at N/A
resignation.
No further
contributions will be
deducted from pay.
Employee may continue
to be reimbursed for
eligible expenses
incurred prior to
resignation date.
401(k) Participation in effect Participation ends at
upon resignation may be termination of
continued at discretion employment.
of employee.
Employee continues to Employee's distribution
make contributions on options depend on the
same basis as active amount of funds on
employees through account at termination.
payroll deduction, and
Company match continues
per plan provisions.
Employee Stock Purchase No further NA
Plan contributions will be
deducted from pay.
Accumulated funds held
in the program will be
refunded in the next
available pay period.
Employee Assistance You may continue to You may continue access
Program access the services of for 60 days following
Xxxxx & Xxxxxx your termination, the
Associates, Inc. during services of Xxxxx &
your period of interim Xxxxxx Associates, Inc.
employment.
