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Exhibit 10.6 (a)
SEPARATION AGREEMENT
AGREEMENT made as of the 17th day of December, 1997 by and between
NORTON XXXXXXXXXX OF XXXXXX, INC., a New York corporation (the "Company"), and
XXXXXX XXXXXX ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxx and, the Company were parties to the Amended and
Restated Employment Agreement dated as of November 4, 1993 (the "Employment
Agreement"); and
WHEREAS, the Employment Agreement expired by its terms effective as
of November 4, 1997.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Term; Performance of Agreement.
1.1 The Company agrees to retain Xxxxxx for, and Xxxxxx agrees to
provide, any mutually agreed upon consulting services on a project-by-project
basis for the period commencing on January 1, 1998 (the "Separation Date") and
terminating on December 31, 2007 (the "Term").
1.2 The parties hereto acknowledge that Xxxxxx will retain all
options to purchase shares of common stock, $.01 par value, of Norton
XxXxxxxxxx, Inc. presently held by Xxxxxx, and that the terms and conditions of
such options shall be governed by the Norton XxXxxxxxxx, Inc. Stock Options
Plan.
2. Consulting Services; Independent Contractor.
2.1 During the Term, Xxxxxx shall provide any mutually agreed upon
consulting services as shall be requested by the Board of Directors of the
Company and agreed to by Xxxxxx, particularly with respect to management
information systems matters. Subject to Xxxxxx'x availability, Xxxxxx shall
devote such time and attention to the performance of his duties and
responsibilities hereunder as shall be necessary for the proper performance
thereof.
2.2 Xxxxxx shall perform any duties and responsibilities hereunder
as an independent contractor. Nothing
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herein shall be deemed to create a partnership, joint venture or employment
relationship between Xxxxxx and the Company.
3. Consulting Fee. (A) For the period commencing on the Separation
Date and ending on July 31, 1999, the Company shall pay Xxxxxx or his
beneficiaries (as defined in Section 13 hereof), and Xxxxxx shall accept, a
consulting fee at a rate of $320,000 per annum, payable periodically in
accordance with the standard payroll practices of the Company. (B) During the
remainder of the Term, the Company shall pay Xxxxxx, and Xxxxxx shall accept, a
mutually agreed upon consulting fee, in a mutually agreed upon amount determined
on a project-by-project basis by Xxxxxx and the Board of Directors of the
Company.
4. Medical Insurance. For the period commencing on the Separation
Date until the earlier of either (i) July 31, 1999 or (ii) the date on which
Xxxxxx obtains health insurance coverage through any employer offering health
insurance coverage (the "Medical Insurance Term"), the Company agrees, at its
expense, to provide Xxxxxx and his spouse coverage under the medical plans of
the Company on the same terms and conditions (including the same Company-paid
portions) that coverage is generally available to employees of the Company. In
the event that the Company is unable to provide the coverage set forth in the
preceding sentence during any month as a result of (a) a change of law or
regulation which restricts the provision of coverage for persons who are not
employees of the Company, (b) the failure by the Company's insurance carrier or
plan to provide coverage for persons who are not employees of the Company or (c)
a change in the cost of such coverage such that the cost to the Company to
provide such coverage for any monthly period exceeds $500 per month, the Company
shall not be obligated to provide such coverage under its medical plans and,
during the Medical Insurance Term, shall reimburse Xxxxxx for any premiums paid
by Xxxxxx for comparable medical coverage, provided that such reimbursement
shall not exceed $500 per month during 1998 and $525 per month during 1999. In
the event of an occurrence of an event described in clause (c) above, the
Company shall notify Xxxxxx of such occurrence and, in lieu of reimbursing
Xxxxxx as aforesaid, at Xxxxxx'x option exercised promptly, if at all, the
Company shall continue to provide coverage during the Medical Insurance Term to
Xxxxxx and his spouse under its medical plans and Xxxxxx shall reimburse the
Company on a monthly basis for the cost of such coverage in excess of $500 per
month during 1998 and in excess of $525 per month during 1999.
5. Disability and Life Insurance. (A) For the period commencing on
the Separation Date until the earlier of either (i)
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July 31, 1999 or (ii) the date on which Xxxxxx obtains disability insurance
coverage through any employer offering disability insurance coverage, the
Company shall, at its expense, continue to provide Xxxxxx with coverage under
the disability policies under which Xxxxxx was covered on December 15, 1997. (B)
For the period commencing on the Separation Date until the earlier of either (i)
July 31, 1999 or the date on which Xxxxxx obtains life insurance coverage
through any employer offering life insurance coverage, the Company shall, at its
expense, continue to provide Xxxxxx with coverage under the life insurance
policy under which Xxxxxx was covered at the expense of the Company on December
17, 1997; provided that, in the event that the foregoing life insurance policy
is transferable, the Company shall cooperate with Xxxxxx in the event that
Xxxxxx desires to purchase the foregoing life insurance policy on the earlier to
occur of such dates.
6. Automobile. For the period commencing on the Separation Date
until the earlier of either (i) July 31, 1999 or (ii) the date on which Xxxxxx
obtains the use of an automobile through any employer offering such benefit, the
Company shall pay all lease payments, the premiums for automobile insurance
coverage, and standard maintenance and gas expenses for the 1997 Land Rover
currently leased by the Company and used by Xxxxxx. After the earlier to occur
of such dates, Xxxxxx shall return the automobile or be solely responsible for
such lease payments, automobile insurance coverage, and standard maintenance and
gas expenses.
7. Computer. Subject to Section 9 of this Agreement, Xxxxxx shall
be entitled to retain the personal computers used by him during his employment
with the Company (the "P.C.'s"), one of which is located at Xxxxxx'x office at
the Company and one of which is located at Xxxxxx'x residence.
8. Termination of Employment; Release.
8.1 Xxxxxx hereby resigns his position as an officer of the Company
and each of its subsidiary and affiliate entities (collectively with the
Company, the "Norton Companies") effective as of December 17, 1997, and the
Company accepts said resignation.
8.2 Xxxxxx'x employment with the Norton Companies shall terminate on
December 31, 1997 (the "Termination Date"), and thereafter Xxxxxx and the
Company shall have no further rights or obligations under the Employment
Agreement. Notwithstanding the foregoing, and without limiting Sections 2 and 3
hereof, Xxxxxx agrees to remain available, from time to
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time as reasonably requested by the Company, during the month of January 1998 to
assist the Company during a transition period.
8.3 Xxxxxx acknowledges and agrees that the consulting arrangement
contemplated by Section 2 of this Agreement, the consulting fee contemplated by
Section 3 of this Agreement and the benefits to Xxxxxx contemplated by Sections
4, 5, 6 and 7 of this Agreement exceed any benefit to which Xxxxxx is otherwise
entitled and shall constitute consideration for the release of claims set forth
in Section 8.4 of this Agreement and for the agreements set forth in Section 9
and 10 of this Agreement.
8.4 In consideration of the payments and benefits to Xxxxxx set
forth herein, Xxxxxx for himself and his heirs, administrators, successors and
assigns releases the Company, Norton XxXxxxxxxx, Inc., a Delaware corporation
("Norton"), and each of their respective subsidiary and affiliate entities, and
its and their respective officers, directors and employees (collectively, the
"Releasees"), from all claims, actions, causes of action, suits, debts, dues,
sums of money, accounts, covenants, contracts, controversies, agreements,
promises, damages, judgments, executions and demands whatsoever, in law or
equity, including, without limitation, all claims and rights under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967,
the New York State Human Rights Law, the New York City Human Rights Law, the
Americans with Disabilities Act, the Civil Rights Act of 1866 (42 U.S.C.
ss. 1981), the Civil Rights Act of 1991, the Equal Pay Act, the Family and
Medical Leave Act, the Fair Labor Standards Act and the Employee Retirement
Income Security Act of 1974, all as amended, including, but not limited to, the
right to the payment of wages, vacation, pension benefits or any other employee
benefits, or any other rights arising under federal, state or local laws
prohibiting discrimination and/or harassment on the basis of race, color, creed,
religion, sex, pregnancy, marital status, sexual orientation, national origin,
age, physical or mental handicap or disability, alienage/citizenship status or
any other basis prohibited by law, which Xxxxxx ever had, now has or hereafter
can, shall or may have against the Company, Norton or any of the other Releasees
arising out of or relating to the Employment Agreement, Xxxxxx'x employment or
other relationship with the Company, Norton or any of the other Releasees, and
the termination thereof, from the beginning of the world to the date of this
Agreement, except for any liability or claim arising out of this Agreement.
Xxxxxx agrees never directly or indirectly to commence or prosecute, or assist
in the filing, commencement or prosecution of any action, proceeding or charge
against the
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Company, Norton or any of the other Releasees with respect to the matters hereby
released.
8.5 The Company has advised Xxxxxx to consult with an attorney of
his choosing prior to the signing of this Agreement, and Xxxxxx hereby
represents and warrants to the Company that he has been offered an opportunity
to consult with an attorney prior to the execution of this Agreement. Xxxxxx
acknowledges that he was offered the opportunity to consider the waiver of
claims under the Age Discrimination in Employment Act of 1967 for a period of
twenty-one (21) days from the time that he received this Agreement, and was
advised to review it with an attorney of his choice. Xxxxxx is further advised
that he has seven (7) days after he signs this Agreement to revoke the waiver of
any claims under the Age Discrimination in Employment Act of 1967 by notifying
the Company in writing. The release of any claims under the Age Discrimination
in Employment Act of 1967 will not become effective or enforceable until the
seven (7) day period has expired.
8.6 Xxxxxx expressly represents and warrants that he has carefully
read and fully understands that this Agreement includes a general release of all
claims, including all claims under the Age Discrimination in Employment Act of
1967, that he has had a full opportunity to review this Agreement with an
attorney and that he has executed this Agreement voluntarily, without duress,
coercion or undue influence and with such advice from his attorney as
appropriate.
8.7 The Company and Norton release and discharge Xxxxxx and his
heirs, executors, administrators, assigns or agents from any and all claims
arising in connection with the Employment Agreement, Xxxxxx'x employment or
other relationship with the Company, Norton or any of the other Releasees and
the termination thereof, which the Company, Norton and any of the other
Releasees ever had, now have or hereafter can, shall or may have against Xxxxxx
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the date of this Agreement, except for any liability
or claim arising out of this Agreement.
9. Confidential Information.
9.1 Xxxxxx shall treat as confidential and not disclose, publish or
otherwise make available to the public or to any individual, firm or corporation
any confidential material (as hereinafter defined). Xxxxxx has returned or will
return to the Company on or before the Termination Date all confidential
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material, reports, files, memoranda, records, credit cards, cardkey passes, door
and file keys, computer software and programs (including all software and
programs loaded or otherwise electronically reproduced or stored on the P.C.'s),
computer access codes, computer tapes, cassettes, diskettes, compact discs-read
only memory (CD-ROM's), computer instruction manuals, and other physical or
personal property which Xxxxxx has received in connection with his employment or
other relationship with the Company or any of the other Norton Companies, and
Xxxxxx has not retained and will not retain any copies, facsimiles, duplicates,
reproductions or excerpts thereof.
9.2 For the purposes hereof, the term "confidential material" shall
mean all information heretofore or hereafter acquired by Xxxxxx in any way
concerning the products, projects, activities, business or affairs of the
Company, Norton and any of their subsidiary or affiliate entities (collectively,
the "Company Group") or the agents, customers or suppliers of the Company or any
member of the Company Group, including, without limitation, all information
concerning trade secrets and the preparation of raw material for, manufacture
of, or finishing processes utilized in the production of, the products or
projects of the Company or any member of the Company Group or any improvements
therein, all sales and financial information concerning the Company or any
member of the Company Group, all customer and supplier lists, all information
concerning projects in research and development or marketing plans for any such
projects, and all information in any way concerning the products, projects,
activities, business or affairs of the agents, customers or suppliers of the
Company or any member of the Company Group which is furnished to Xxxxxx by the
Company or any of its employees (current or former), agents, customers or
suppliers, as such; provided, however, that the term "confidential material"
shall not include information which (a) becomes generally available to the
public other than as a result of a disclosure by Xxxxxx, (b) was available to
Xxxxxx on a non-confidential basis prior to his employment with the Company or
(c) becomes available to Xxxxxx on a non-confidential basis from a source other
than the Company or any of its agents, customers or suppliers, provided that
such source is not bound by a confidentiality agreement with the Company or any
of such agents, customers or suppliers.
9.3 Neither Xxxxxx nor his representative(s) or attorney(s) will
publish, publicize or disseminate, or cause to be published, publicized or
disseminated, any information relating to this Agreement, including, without
limitation, the amount or structure of the consideration that the Company has
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agreed to pay pursuant hereto or any information relating to the conclusion of
Xxxxxx'x employment or other relationship with the Company, Norton or other
member of the Company Group. This paragraph will not be construed to prevent
Xxxxxx from describing his duties at the Company or Norton in connection with
any effort to obtain employment. In addition, the provisions of this paragraph
shall not prevent Xxxxxx from disclosing the information contained in this
Agreement to his attorney(s) or accountant(s) whom he consults for the purpose
of obtaining professional advice or services, so long as prior to any such
disclosure, Xxxxxx advises such persons that such information is confidential
and may not be disclosed by such person.
10. Non-Disparagement. The parties agree that they will not make, or
cause to be made, any statements, observations or opinions, or communicate any
information (whether oral or written), that disparages or is likely in any way
to harm (whether or not intended to harm) the reputation or goodwill of the
other or of any member of the Company Group or any of their respective
directors, officers or employees.
11. Equitable Relief: Jurisdiction; Waiver of Trial by Jury. (A) In
the event of a breach or threatened breach by Xxxxxx of Sections 8, 9 or 10 of
this Agreement, Xxxxxx hereby consents and agrees that the Company or other
injured person shall be entitled to pre-judgment injunctive relief or similar
equitable relief restraining Xxxxxx from committing or continuing any such
breach or threatened breach or granting specific performance of any act required
to be performed by Xxxxxx under any of such provisions, without the necessity of
showing any actual damage or that money damages would not afford an adequate
remedy and without the necessity of posting any bond or other security. (B) The
parties hereto hereby consent to the jurisdiction of the Federal courts located
in the Southern District of New York and the state courts located in such
District for any proceedings under this Agreement, including this Section 11.
(C) EACH OF THE PARTIES HERETO HEREBY WAIVES THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IN THE EVENT OF ANY LITIGATION ARISING OUT OF THIS AGREEMENT, THE
EMPLOYMENT AGREEMENT, XXXXXX'X EMPLOYMENT AND THE TERMINATION THEREOF, OR OTHER
RELATIONSHIP BETWEEN THE PARTIES. (D) Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies at law or in equity
which it may have.
12. No Admission of Liability. By entering into this Agreement,
neither Xxxxxx nor the Company admits to any violation of statute, law,
regulation or ordinance, and each of Xxxxxx and the Company expressly denies
committing any such violation.
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13. Successors and Assigns. Xxxxxx may not assign this Agreement or
any part thereof without the prior written consent of a majority of the Board of
Directors of the Company; provided, however, that nothing herein shall preclude
one or more beneficiaries of Xxxxxx from receiving any benefits set forth in
this Agreement following the occurrence of his legal incompetency or his death
and shall not preclude the legal representative of his estate from receiving
such benefits or from assigning any right hereunder to the person or persons
entitled thereto under his will or, in the case of intestacy, to the person or
persons entitled thereto under the laws of the intestacy applicable to his
estate. The term "beneficiaries", as used in this Agreement, shall mean the
legal representative of Xxxxxx (in the event of his incompetency) or Xxxxxx'x
estate.
14. Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
15. Entire Agreement. This Agreement contains all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof and supersedes all undertakings and agreements, whether oral or in
writing, if there be any, previously entered into by them with respect thereto.
16. Modification and Amendment; Waiver. The provisions of this
Agreement may be modified, amended or waived, but only upon the written consent
of the party against whom enforcement of such modification, amendment or waiver
is sought and then such modification, amendment or waiver shall be effective
only to the extent set forth in such waiver. No delay or failure on the part of
any party hereto in exercising any right, power or remedy hereunder shall effect
or operate as a waiver thereof, nor shall any single or partial exercise thereof
or any abandonment or discontinuance of steps to enforce such right, power or
remedy preclude any further exercise thereof or of any other right, power or
remedy.
17. Notices. All notices, requests or instructions hereunder shall
be in writing and delivered personally, sent by telecopier or sent by registered
or certified mail, postage prepaid, return receipt requested, or sent by Federal
Express or any other nationally recognized overnight courier service as follows:
If to the Company:
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Xxxxxx XxXxxxxxxx of Xxxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to Xxxxxx:
Xxxxxx Xxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered, telecopied or sent by Federal Express or any other recognized
overnight courier service, and three business days after the date of mailing, if
mailed by registered or certified mail, return receipt requested.
18. Severability. Should any provision of this Agreement be held by
a court of competent jurisdiction to be enforceable only if modified, such
holding shall not affect the validity of the remainder of this Agreement, the
balance of which shall continue to be binding upon the parties hereto with any
such modification to become a part hereof and treated as though originally set
forth in this Agreement. The parties further agree that any such court is
expressly authorized to modify any such unenforceable provision of this
Agreement in lieu of severing such unenforceable provision from this Agreement
in its entirety, whether by rewriting the offending provision, deleting any or
all of the offending provision, adding additional language to this Agreement, or
by making such other modifications as it deems warranted to carry out the intent
and agreement of the parties as embodied herein to the maximum extent permitted
by law. The parties expressly agree that this Agreement as so modified by the
court shall be binding upon and enforceable against each of them. In any event,
should one or more of the provisions of this Agreement be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and if such
provision or provisions are not modified as provided above, this Agreement shall
be construed as if such invalid, illegal or unenforceable provisions had never
been set forth herein.
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19. Survivorship. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
20. Expenses. Each of the parties hereto shall bear his or its own
costs and expenses, including attorneys' fees and disbursements, incurred in
connection with this Agreement and the transactions contemplated hereby.
21. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
22. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
23. Construction. No provision of this Agreement shall be construed
against or interpreted to the disadvantage of any party by any court by reason
of such party having or being deemed to have drafted, devised or imposed such
provision.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
NORTON XXXXXXXXXX XXXXXX, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Title: President
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
