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EXHIBIT 10.6(b)
AGREEMENT AND GENERAL RELEASE
On this ___ day of June, 2000, Applied Graphics Technologies, Inc. ("AGT" or the
"Company") and Xxxxx Xxxxxxxx, Xx. ("Employee"), agreed on terms and conditions
as set forth below:
1. (a) Employee's employment with the Company will terminate effective August 3,
2000 (the "Termination Date").
(b) Immediately following expiration of the revocation period referred to in
Paragraph 9 below, the Company shall pay to Employee the total gross sum of Four
Hundred Thousand dollars ($400,000.00), less applicable withholdings and other
payroll deductions (the "Termination Pay").
(c) Effective June 4 through August 3, 2000, Employee will be employed by the
Company on a part-time basis as described below (the "Extended Employment
Period"):
(i) Employee will be available to work on the following projects
as well as any other projects mutually agreed upon:
(A) disposition or closure of AmuseMatte;
(B) preparation and resolution of Net Asset Statement in
connection with sale of PhotoLabs business and other
activities related thereto;
(C) assistance with respect to the proposed sale of Devon
Publishing Group;
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(D) bonusable services (set forth in the attached minutes
of the Compensation Committee of the Board of
Directors) related to the potential sale of AGT with
respect to either groups led by Perseus and/or
CitiGroup or affiliates thereof; and
(E) mutually agreed to bonusable services (set forth in
the attached minutes of the Compensation Committee of
the Board of Directors) related to the potential sale
of AGT with respect to any other potential buyer.
(ii) Employee will be available to perform services for the Company
pursuant to Paragraphs 1(c)(i)(A), 1(c)(i)(B), and 1(c)(i)
(C), up to a maximum of ten (10) days between June 4 and July
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August 3. Employee will also be available to perform services
for the Company pursuant to Paragraphs 1(c)(i)(D) and
1(c)(i)(E) at the Company's request both during and after the
Extended Employment Period.
(iii) Employee's sole wages for services performed hereunder during
the Extended Employment Period (or thereafter pursuant to
Paragraphs 1(c)(i)(D) and 1(c)(i)(E)) will be $1,538.46, less
applicable deductions and employee withholdings, for each day
actually worked.
(iv) Employee will be reimbursed for all normal and reasonable
expenses incurred in performing services hereunder including
air fare to and from Atlanta, Georgia (or whatever city
Employee may be working in at the time) to whatever location
required unless the need to perform services for the Company
coincides with Employee being in the New York Metropolitan
area. Employee will use his best efforts to perform his duties
with AGT when he is otherwise in the New York Metropolitan
area.
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(v) Employee will have the opportunity to continue during the
Extended Employment Period the medical and life insurance
coverage he currently enjoys pursuant to the Company's
policies at the same cost to the Employee as immediately prior
to the date of this Agreement and General Release unless
Employee's subsequent employer provides Employee with such
coverage. Towards that end, Employee will take whatever steps
are necessary and appropriate to continue said coverage, (i.e.
electing continued coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended, and converting
his current life insurance coverage), and the Company will
reimburse the Employee to the extent required so that the
Employee's cost for said coverage will be the same as
immediately prior to the date of this Agreement and General
Release.
(vi) Employee's title will be Senior Vice President and he will be
provided with office space comparable with what he had as of
June 2, 2000, to the extent such space is available. To the
extent she is still employed by the Company, Xxxxxx Xxxxxx
will be available to assist Employee on AGT business provided
that it is understood that performing her duties with respect
to the current Chief Financial Officer will take precedence.
Employee will continue to be permitted to utilize the computer
he currently utilizes and will have access to the extent
needed to the computer network.
(d) Employee will receive whatever payments, if any, he may become entitled to
receive pursuant to the minutes of the meeting of the Compensation Committee of
the Board of Directors dated May 8, 2000, the relevant part of which is attached
hereto as Exhibit A (the "Minutes").
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(e) Employee shall not be entitled to any other payments or benefits, except for
any rights he may have pursuant to any stock option agreement between him and
the Company.
2. In exchange for the consideration provided for by this Agreement and General
Release, including the consideration provided for by Paragraph 1 above, which
Employee acknowledges exceeds that to which he would be entitled under any
applicable Company plan, policy, or practice:
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(a) Employee, for himself and for his heirs, executors, administrators, and
assigns (hereinafter referred to collectively as "Releaser"), forever releases
and discharges the Company and any and all of its respective parent
corporations, partners, subsidiaries, divisions, affiliated entities, successors
and assigns, and any and all of their past and/or present officers, directors,
partners, agents and employees (hereinafter referred to collectively as the
"Releasees"), from any and all claims, demands, charges, complaints, causes of
actions, obligations, promises, agreements, debts, expenses, fees and
liabilities of any kind whatsoever, whether known or unknown, foreseen or
unforeseen, which Releasor ever had or now has against Releasees by reason of
any actual or alleged act, omission, transaction, agreement, practice, policy,
conduct, occurrence, or other matter from the beginning of the world up to and
including the date of this Agreement and General Release, including, but not
limited to: (i) any claim under the Age Discrimination in Employment Act, as
amended; (ii) any claim under Title VII of the Civil Rights Act of 1964, as
amended, the New York State Human Rights Law, as amended, and the New York City
Human Rights Law, as amended; (iii) any claim under the Employee Retirement
Income Security Act of 1974, as amended; (iv) any other claim of discrimination
in employment (whether based on federal, state or local law, statute, rule,
regulation or common law); (v) any claim arising out of Employee's employment
with the Company, the terms and conditions of Employee's employment with the
Company, the termination of such employment, and/or any of the events relating
directly or indirectly to or surrounding that termination; (vi) any claim for
severance pay under any purported severance pay policy, or any claim for other
benefits; (vii) any claim under the Employment Agreement between the Employee
and the Company dated April 16, 1996 and the Employment Agreement Extension
between said parties dated March 23, 1998 (collectively, the "Employment
Agreement"); and (viii) any claim for attorney's fees, costs, disbursements
and/or the like.
(b) Employee represents, warrants and covenants that he has not and will not, in
any way, disparage, discredit, defame or belittle the Company, its employees or
products, officers or affiliates or any of their respective parent corporations,
partners, subsidiaries, divisions, affiliated entities, successors and assigns,
and any and all of their past and/or present officers, directors,
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partners, agents and employees, except in conversations with the Company's
senior officers and directors in the course of performing his duties hereunder.
3. Employee represents and warrants that he has not commenced, maintained,
prosecuted or participated in any action, suit, charge, complaint or proceeding
of any kind against Releasees that is pending in any court or before any
administrative or investigative body or agency. To the extent permitted by
applicable law, Employee covenants that he shall not at any time hereafter
commence, maintain, prosecute, participate in, or permit to be filed by any
other person on his behalf, any action, suit, charge, complaint or proceeding of
any kind (other than filing for unemployment) against Releasees with respect to
any act, omission, transaction or occurrence up to and including the date of the
execution of this Agreement and General Release.
4. Employee agrees that he will not, for himself or any other person or entity,
directly or indirectly divulge, communicate or in any way make use of any
confidential, sensitive, or proprietary information ("Confidential Information")
acquired in the performance of Employee's services for the Company without the
prior written consent of a duly designated representative of the Company; such
Confidential Information may include, but is not limited to, financial,
advertising information, business strategies, systems, methods and procedures,
reports, specifications, computer data, intellectual property, and other
business and technical information. Employee acknowledges that the Confidential
Information constitutes a valuable asset of the Company, embodying substantial
business and creative efforts, and that any disclosure of Confidential
Information by Employee will result in irreparable injury to the Company; by
means of such disclosure, Employee consents to the grant by any court of
equitable relief, including specific performance, restraining order and/or
injunction, in favor of the Company, without prejudice to any and all other
rights or remedies to which the Company may be entitled. Employee also agrees
that he will not disclose to any other person or entity the terms and conditions
of this Agreement and General Release, without the prior written consent of a
duly designated representative of the Company, except that Employee may disclose
the terms and conditions of this Agreement and General Release to his spouse,
attorney, financial advisor and/or accountant, provided that they agree to
maintain the confidentiality of this Agreement and General Release.
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5. In the event Employee breaches any representation, warranty, covenant or
agreement of this Agreement and General Release, including, but not limited to,
Paragraphs 2, 3, 4 and 7, the Company shall be entitled to recover from Employee
any amount paid to him by the Company pursuant to Paragraph 1(b) and/or 1(d) at
the time of breach. Employee hereby agrees that the Company may bring an action
(or counterclaim) to recover such amount. The Company shall be entitled to
recover from the Employee (in addition to any other sum determined to be due and
owing) its reasonable attorney's fees and costs incurred in such action.
Employee further acknowledges and agrees that any breach by him of the covenants
herein will cause irreparable harm to the Company. Accordingly, in the event of
any such breach, or anticipated breach, the Company shall be entitled to
injunctive relief.
6. If any part, term, or provision of this Agreement and General Release is
declared by any court of competent jurisdiction in a final, non-appealable
judgment to be illegal, void, unenforceable or invalid, such provision shall
have no effect upon, and shall not impair the legality, enforceability or
validity of, any other provision of this Agreement and General Release;
provided, however, that, upon any finding by such court of competent
jurisdiction that a release or waiver of claims or rights, or a covenant
provided for by Paragraphs 2, 3 or 4 above, is illegal, void, unenforceable or
invalid, Employee agrees at the Company's option, either to return promptly to
the Company any amount paid to him by the Company pursuant to Paragraph 1(b)
and/or 1(d) or to execute a release, waiver and/or covenant that is legal, valid
and enforceable to the maximum extent permitted by applicable law.
7. This Agreement and General Release constitutes the complete understanding
between the parties and may not be changed orally. Employee acknowledges that no
representative of the Company has made any representation or promise to him
concerning the terms and conditions of this Agreement and General Release or the
termination of his employment with the Company other than those expressly set
forth in this Agreement and General Release. It is understood and agreed that
the Employment Agreement is null and void and of no further force and effect.
Notwithstanding the foregoing, the Noncompetition,
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Nonsolicitation and Confidentiality Agreement attached as Exhibit A to the
Employment Agreement will continue in full force and effect. It is understood
and agreed that the expiration of the Employment Agreement will not be
considered to be a "termination" of the Employment Agreement within the meaning
of Paragraph 6(b) therein.
8. Employee hereby acknowledges and represents that: (i) the Company has advised
him that he should consult with independent legal counsel before executing this
Agreement and General Release; (ii) Employee has had the opportunity to
consider, for at least twenty-one (21) days, this Agreement and General Release;
and (iii) Employee has carefully read this Agreement and General Release in its
entirety, has discussed it or had reasonable opportunity to discuss it with any
advisor of his choice, fully understands it, voluntarily assents to all of its
terms and conditions and is signing it of his own free will.
9. This Agreement and General Release shall not become effective until the
eighth (8th) day following Employee's signing of this Agreement and General
Release (the "Effective Date"), and Employee may at any time prior to the
Effective Date revoke this Agreement and General Release by delivering a written
notice of such revocation to Xxxxx Xxxxx, Applied Graphics Technologies, Inc.,
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
10. This Agreement and General Release shall be governed by, and construed and
enforced in accordance with the laws of the State of New York.
APPLIED GRAPHICS TECHNOLOGIES, INC.
By: _______________________________
Xxxxx Xxxxxxxx, Xx.
