Exhibit
10.1
Personal and
Confidential
Re:
Separation Agreement and
Release
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:
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.
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
sue, 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.
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 Disabilities Act, 42 U.S.C. §
12101 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 Sarbanes-Oxley Act, 15 U.S.C.
§ 7201 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
(incl
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