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EXHIBIT 10.1
Separation Agreement and Release
This Separation Agreement and Release entered into as of the 11th day of April,
2000, is made by and between Inso Corporation ("the Company") and Kirby A.
Mansfield ("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 and director of the Company
and all of the Company's subsidiaries effective April 11, 2000 ("the
Resignation Date") and as an employee with the Company (apart from holding
an office as aforesaid) on April 26, 2002 ("the Termination Date").
Executive shall execute and return to the Company the resignation letter
attached hereto as Exhibit A.
2. (a) 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 Board of Directors of the Company at reasonable times and
places mutually agreeable to the parties. It is the intention of the
parties that such special assignments would not unreasonably interfere with
any future employment the Executive may undertake with an employer other
than the Company. Additionally, the Executive shall be reimbursed for
reasonable expenses, as determined by the Company related to the services
requested by the Chief Executive Officer or the Board of Directors during
the Interim Period.
(b) At Executive's option, Executive may elect in writing to receive the
salary continuation set forth in Paragraph 2(a) above in an accelerated
lump sum payment, provided that such lump sum payment shall be discounted
to its present value, at a discount rate to be determined by the Company's
investment bankers. However, if the election is made six months or less
prior to the Termination Date, then the discount rate shall be deemed to
be the six (6) month US Treasury bill rate on the election date plus one
hundred and fifty (150) basis points. In the event Executive elects this
lump sum payment option, Executive's Termination Date shall be the date of
such election for purposes of this Agreement (including without limitation
Paragraphs 3, 4, 6 and Attachment A to this Agreement).
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3. During the Interim Period 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,
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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 and eligibility for further
vacation, sick leave and other paid time off shall cease on the Resignation
Date. The Executive shall be entitled to earned but unused vacation, which
shall be paid to him within 15 days of the execution of this Agreement.
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 plans, 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 and
restricted shares 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 plans.
7. Executive shall be entitled to an incentive compensation payment of
$36,000. This will be paid within 15 days of the execution of this
Agreement.
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 March 1, 1994, which Agreement is incorporated
herein by reference.
9. The Company has offered, upon request of the Executive, to pay up to
$10,000 for and retain a firm to provide Executive Outplacement Assistance,
or, at the Executive's election, and in lieu of the Executive Outplacement
Assistance, provide a 10,000 cash payment directly to the Executive. The
Executive has elected the $10,000 cash payment.
10. During the Interim Period, the Executive will not attempt to hire or hire,
or attempt to solicit or solicit, any employee of the Company, or assist in
such hiring by anyone else, to work as an employee or independent
contractor, with, or otherwise provide services to, any business directly
competitive with the Company's business. Notwithstanding the foregoing,
the Executive will not be considered to
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be in violation of this Agreement if he complies with a request to provide
a written or oral reference for someone seeking employment where this
conduct would otherwise be considered to violate the provisions of this
paragraph.
11. During the Interim Period, absent the Company's prior written approval, the
Executive shall not provide services, either as a contractor, employee or
otherwise, for any of the following companies or their parents,
subsidiaries or affiliates: (a) Vignette, (b) Broadvision, (c) Interwoven,
(d) ExpressRoom, (e) FutureTense, (f) Allaire, (g) NetObjects, (h)
Macromedia, (i) Documentum, (j) Interleaf, (k) Poet Software, (l) Art
Technology Group, (m) Verity, (n) FileNet, or (o) any division or operating
unit of Oracle engaged in direct or indirect competition with the Company.
Executive agrees and understands that if he is to breach any Provision of
Paragraphs 10 or 11 of this Agreement, in addition to all other remedies
available to the Company in law and in equity, the Company shall be
entitled to: (a) discontinue any of its obligations under this Agreement;
and (b) obtain a Court Order enforcing the provisions(s) which Executive
has breached.
12. 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.
13. Executive agrees to return to the Company prior to the Resignation Date,
all Company property 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 laptop computer and peripherals purchased by the Company
for his use.
14. 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, 2000. 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, except as required
by law. Even after a copy of this Agreement is included as an exhibit to
the Company's Form 10-Q, the parties agree to keep completely and strictly
confidential any settlement negotiations that occurred in connection with
this Agreement.
15. 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
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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. (S)2000e et. seq., the Age Disrimination in employment Act,
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29 U.S.C. (S) 621 et seq., the Family and Medial Leave Act, 29 U.S.C.
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(S) 2601 et seq., the Employee retirement Income Security Act, 29 U.S.C.
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(S) et seq., the Massachusetts Civil Rights Act, M.G.L.c. 12 (S)11H and
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11I, the Massachusetts Fair Employment Practices Act, M.G.L.c. 151b, (S)1
et. seq., the Americans with Disabilities Act, 29 U.S.C. (S)12101 et. seq.,
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and the Massachusetts Equal Rights Act, c.93, (S)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.
16. 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.
17. 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's senior executives (to include the
President & CEO and his direct reports) 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.
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18. 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.
19. 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.
20. 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.
21. This Agreement shall become effective on the eighth (8/th/) 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.
22. 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.
23. 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
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rights or duties it may have hereunder without prior written consent of the
Company.
24. 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.
25. This Agreement is to be governed and will be construed under and in
accordance with the laws of the Commonwealth of Massachusetts.
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26. 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. Without limitation,
the parties acknowledge and agree that the Management Retention Agreement
by and between Inso and the Executive is terminated and is of no further
force and effect.
IN WITNESS WHEREOF, the Company and Executive have entered into this Agreement
on the date first above written.
Inso Corporation The Executive
/s/ Jonathan Levitt /s/ Kirby A. Mansfield
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Jonathan Levitt Kirby A. Mansfield
Vice President, General Counsel
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Entered into as of the 11/th/ day of May, 2000
Inso Corporation
31 St. James Avenue
Boston, MA 02116-4101
Attention: Stephen O. Jaeger
Chairman of the Board of Directors of Inso Corporation
Dear Steve:
Effective April 11, 2000, I hereby resign my position as President, Chief
Operating Officer and Director of Inso Corporation, and resign from any position
I hold as an officer or director of any subsidiaries and affiliates of Inso
Corporation, pursuant to the Separation Agreement and Release entered into as of
the 11/th/ day of April, 2000.
Sincerely,
/s/ Kirby A. Mansfield
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Kirby A. Mansfield
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