Severance Agreement - Scient Inc. and Ted Browne
December 30, 2001
Ted Browne
1888 Emery St. NW
Atlanta, GA 30318
Dear Ted,
This letter will constitute an agreement ("Agreement") between Ted
Browne ("you" or "your") and Scient, Inc. (the "Company") regarding the
termination of your employment with the Company.
1. TERMINATION DATE. Your employment with the Company shall terminate
December 31, 2001 effective (the "Termination Date"). In addition to
resigning as General Counsel of the Company and its subsidiaries, you
will also resign as the Corporate Secretary to the Company.
2. PAYMENT. (a) In consideration for the Release contained herein and
provided that the Agreement has not been revoked by you prior to that
date, the Company shall provide to you a severance amount equivalent to
twelve (12) months pay (Payment Period) at your current salary, in
settlement of your future wage claims and any other claim. The
severance amount shall be divided into twenty-four equal amounts (Final
Payment Date) and paid out on the normal pay cycle of Scient. less all
federal, state and local taxes and any standard deductions, including
medical, dental and vision benefits you have selected. These payments
shall be offset by any monies owed to Scient. You understand and agree
that you are not eligible for any other bonus or incentive payments up
through and including your Termination Date.
(b) In addition, to assist you in making the transition,
Scient will provide you the following provided you help assist in
making an orderly transition and do not violate any of the provisions
of this Agreement:
1. A payment of $125,000.00 less applicable deductions on January
15, 2002.
2. A grant of 250,000 shares of Scient restricted stock that will
be released to you on April 26, 2002. You will be responsible
for the taxes on those shares upon release.
(c) Per your Employment Agreement you will vest in 50% of your
unvested options effective December 31, 2001 and will have 12 months to
exercise those options and all other options that were vested but not
exercised on December 31, 2001, provided you continue to honor the
other aspects of this Agreement.
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3. RELEASE. In consideration of the terms and provisions of this
Agreement, you, for yourself and your successors, assigns, heirs,
executors and administrators, hereby absolutely, fully, and forever
irrevocably and unconditionally release and discharge the Company, its
parent corporation, subsidiaries, affiliates, successors and assigns,
and the agents, officers, directors, employees, and attorneys of the
Company and its parent corporation, subsidiaries, affiliates,
successors and assigns from any and all manner of action or actions,
cause or causes of action, suits, debts, liabilities, claims,
accountings, demands, obligations, damages, reckonings, and liens of
every kind, nature and description whatsoever, whether known or
unknown, anticipated OR unanticipated, suspected or unsuspected, (the
bold portion defined collectively as "Claims") which you have or at any
time heretofore had from the beginning of your employment with iXL
Corporation now Scient Corporation to the date of this Agreement,
including but not limited to any and all Claims arising under common
law or statutory law, including any and all administrative Claims, and
any and all Claims for breach of any contract, express or implied,
breach of any covenant of good faith and fair dealing, express or
implied, employment discrimination, sexual harassment, fraud,
misrepresentation, defamation, disparagement, any restriction on the
right of the Company to terminate employees, any violation of public
policy, any violation of constitutional rights, or any violations of
federal, state or other governmental statute, regulation, or ordinance,
including, without limitation: (a) Title VII of the Civil Rights Act of
1964, 42 U.S.C.ss.ss.2000e et seq. (race, color, religion, sex and
national origin discrimination); (b) 42 U.S.C.ss. 1981 of the Civil
Rights Act of 1866 (discrimination); (c) the Age Discrimination in
Employment Act, 29 U.S.C.ss.ss.621-634 (age discrimination in
employment including discrimination against individuals over forty
years of age); (d) the Equal Pay Act of 1963, 29 U.S.C.ss. 206 (equal
pay); (e) the Americans with Disabilities Act of 1990, 42
U.S.C.ss.12101 et seq. (handicap discrimination); (f) the Consolidated
Omnibus Budget Reconciliation Act of 1985, 42 U.S.C.ss.1395 et seq.
(insurance matters); (g) the Employment Retirement Income Security Act
of 1976, 29 U.S.C.,ss.1001 et seq. (retirement matters); (h) the Fair
Labor Standards Act and (i) The New York Whistleblower Law; The New
York Human Rights Law; The New York Civil Rights Law; The New York
State Wage and Hour Laws; The New York City Administrative Code, Title
VIII; The New York Occupational Safety and Health Laws; The New York
City Human Rights Law.
4. COVENANT NOT TO SUE. In consideration of the terms and provisions of
this Agreement, you, for yourself and your successors, assigns, heirs,
executors and administrators, hereby absolutely, fully, and forever
irrevocably and unconditionally covenant not to sue or commence any
action or proceeding (administrative or otherwise) against the Company,
its parent corporation, subsidiaries, affiliates, successors and
assigns, and the present or former agents, officers, directors,
employees, and attorneys of any of them on any claim, cause of action,
or complaint arising in whole or in part from facts occurring before
the date of this Agreement.
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5. ACKNOWLEDGMENTS REGARDING RELEASE. You acknowledge that you understand
and agree that this Agreement fully and finally releases and forever
resolves the Claims released and discharged in paragraph 3, including
those which may be known, unanticipated and/or unsuspected. You
acknowledge that you are aware that you may hereafter discover facts in
addition to or different from those which you now know or believe to
exist with respect to the subject matter of this Agreement, but that
your intention is fully, finally and forever to settle, release and
discharge all Claims, known or unknown, anticipated or unanticipated,
suspected or unsuspected, which now exist, may exist or heretofore have
existed. You expressly waive all benefits of any statutes or common law
principles, to the extent that such benefits may contravene the
provisions of paragraph 3 of this Agreement.
6. COBRA BENEFITS. Your normal Scient benefits will continue during your
Payment Period provided you continue to pay your share of the premiums.
Upon completion of your Payment Period, you will be eligible for COBRA
benefits. Should you decide to continue your benefits under COBRA, you
will be fully responsible for the timely payment of premiums for same.
If you accept employment during your Payment Period you will be
expected to notify the General Manager, Global People, 79 Fifth Avenue,
New York, New York 10003, and your Scient benefits coverage will stop
when you are eligible for coverage under your new employer's plan
7. CONFIDENTIALITY. You represent and agree that you will keep the amount,
substance and terms of this Agreement completely and strictly
confidential, and that you will not hereafter disclose any information
concerning the amount, substance or terms of this Agreement to any
person, except for your attorneys, accountants and your spouse. You may
make disclosure of the amount, substance and terms of this Agreement to
your attorneys, accountants or spouse provided that such persons agree
to be bound by this confidentiality provision. Disclosure also may be
made to the extent required by law after reasonable notice to the
Company.
8. NO DISPARAGEMENT. Neither the current officers of the Company nor you
shall make any statement or engage in any conduct which may tend to
disparage or actually disparage the good name and reputation of the
other.
9. RETURN OF CONFIDENTIAL INFORMATION, COMPANY COMPUTER PROGRAMS AND OTHER
COMPANY PROPERTY. You agree that you will deliver on or prior to the
Termination Date to the Company all Company information or other
property, which you currently may have in your possession, custody and
control including, but not necessarily limited to: all physical
property such as cellular telephone, beeper, pager, Palm Pilot or other
related computer/electronic equipment, all non-public or proprietary
information concerning the Company's business, property or financial
affairs or those of its customers or suppliers including, without
limitation, any correspondence, memoranda, files, documents, books,
records, notes, plans, lists of
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customers, prospects, prices, technical specifications or methodology
("Confidential Information"), Trade Secrets, employment records and
history, business plans, financial information, bank account statements
and any and all versions or manifestations of any of the foregoing; the
Company's proprietary intellectual property and all computer programs,
software and computer databases owned or licensed by the Company,
including each and every "back-up" reproduction, photocopy, PC
diskette, "print-out" and electronic hard copy reproduction thereof;
and all other property of the Company or its suppliers, including keys,
products, items from inventory, supplies, demonstration and promotional
materials, brochures and selling materials, computers and computer
equipment. You may retain an IBM PC once the Scient IT department has
reviewed it.
10. RESTRICTION ON DISCLOSURE OF CONFIDENTIAL INFORMATION. You agree that
you shall not discuss with, or disclose to, any third-party, nor use
for your benefit or the benefit of any other person or entity, any
Confidential Information, including the contents or existence of any
such Confidential Information. You further confirm that you have not
retained or provided to others and shall not retain or provide to
others any copies, reproductions or means of access (in any form) to
any Confidential Information or the Company Computer Programs, and that
you have not caused and shall not cause any changes or damage thereto
(including the planting of any computer "viruses" therein) or made or
make any deletions there from. You acknowledge and agree that any
actual or threatened violation of this paragraph will cause the Company
irreparable harm that could not be remedied by monetary damages alone,
and you hereby consent to the grant of any injunctive relief for
violation of this paragraph.
11. COMPELLED DISCLOSURE. In the event that you are requested or required
in any forum to disclose any Confidential Information or any
information that is the subject of this Agreement, you shall provide
the Company with prompt notice of such request or requirement.
12. NO ADMISSIONS. Nothing contained in this Agreement, nor any actions
taken by you or the Company in the making or performance of this
Agreement, shall be construed as or be deemed to be an admission by any
of the parties of any fault, liability, or wrongdoing of any kind
whatsoever, it being understood and agreed that all fault, liability
and wrongdoing is expressly denied.
13. INDEMNIFICATION/LIABILITY COVERAGE. The Company agrees to continue to
indemnify you from any acts, errors or omissions related to any actions
you may take on behalf of the Company as a consultant or during the
transition of your duties after the date of this Agreement to the same
extent that you would have been indemnified as an officer and employee
of the Company pursuant to Section 6.8 of the Company's Charter. In
addition, the Company agrees to make reasonable best efforts to provide
insurance coverage for this continuing obligation.
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14. INTEGRATION. Except for the Confidential Employment Agreement you
signed on March 13, 2001, when you joined iXL/Scient, the terms and
conditions of which shall remain in full force and effect, and the
Indemnification Agreement (and the indemnification obligation in
Section 13 above) between you and the Company and its subsidiaries
which also shall remain in full force and effect, this Agreement
contains and constitutes the entire agreement and understanding between
you and the Company concerning the subject matter hereof, and
supersedes and replaces all prior discussions and negotiations,
proposed agreements or agreements, written or oral, pertaining to such
subject matter. You acknowledge that no person has made any promise,
representation, or warranty not contained herein to induce you to
execute this Agreement and acknowledge that you have not executed this
Agreement in reliance on any promise, representation, or warranty not
contained herein.
15. INTERPRETATION. This Agreement has been negotiated at arms' length
between you and the Company and any rule of law, or any other statute
or legal decision that would require interpretation of any ambiguities
in this Agreement against the party that has drafted it, is of no
application and is hereby expressly waived. The provisions of this
Agreement shall be interpreted in a reasonable manner to effect the
intentions of the parties to this Agreement.
16. SEVERABILITY. In the event that any provision of this Agreement should
be held to be void, voidable, unlawful, or for any reason
unenforceable, the remaining portions hereto shall remain in full force
and effect.
17. CHOICE OF LAW. The terms of this Agreement shall be construed and
governed in accordance with New York law, without regard to its
principles of conflicts of law.
18. ATTORNEYS' FEES. In the event of any dispute between you and the
Company regarding an alleged breach, or the meaning or interpretation
of this Agreement, the prevailing party in any ensuing litigation shall
be entitled to recovery of their legal expenses and costs, including
attorneys' fees.
19. PARAGRAPH HEADINGS. The paragraph headings in this Agreement are for
convenience of reference only and they are not intended to and shall
not in any way (a) enlarge or diminish the rights or obligations
created by this Agreement or (b) affect the meaning or construction of
this Agreement.
20. KNOWING AND VOLUNTARY EXECUTION OF THIS AGREEMENT. You expressly
acknowledge and agree that you are able to read the language, and
understand the meaning and effect, of this Agreement, and you have
signed this Agreement knowingly and voluntarily.
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If the foregoing terms and conditions are satisfactory to you, please
confirm your approval and acceptance of this Agreement by signing and dating
this letter in the space provided below and by returning it to the General
Manager, Global People, 79 Fifth Avenue, 5th Floor, New York, New York 10003 no
later than January 14, 2002. Please keep a copy of this Agreement for your
records.
Sincerely,
/s/ Christopher M. Formant
Christopher Formant
President & CEO
Scient
Signed: /s/ Theodore W. Browne II Date: 12/30/01
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Ted Browne