CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT
10.6
Execution
Copy
CONFIDENTIAL
SEPARATION AGREEMENT AND GENERAL RELEASE
CONFIDENTIAL
SEPARATION AGREEMENT AND GENERAL RELEASE, dated as of January 12, 2007 (this
“Agreement”),
between MDC Partners Inc. (the
“Company”) and
Xxxxxxx Xxxxxx (the
“Executive”).
WHEREAS,
Executive served as the President of the Company’s formerly-owned, Secured
Products International Group (“SPI
Group”),
up to
and including the closing date for the successful sale of the SPI Group by
the
Company on November 15, 2006;
WHEREAS,
in
recognition of the Executive’s efforts and services in connection with the sale
of the SPI Group, and to provide effective ongoing transition consulting
services to the purchaser of the SPI Group as required by the Company, the
parties have agree to the terms and conditions of this Agreement;
NOW,
THEREFORE,
in
consideration of the premises and other good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto agree as
follows:
1. Termination
of Employment.
Executive and the Company have determined that, effective as of December 31,
2006, Executive will resign from his position as an executive officer of the
Company, effective as of December 31, 2006 (the “Termination
Date”);
provided,
however,
that
from and after the Termination Date, Executive will provide consulting services
to the Company on the terms and conditions outlined in Section 2
below.
2. Bonus
Payment; Consulting Services.
(a) SPI
Bonus Payment.
In
consideration of Executive’s efforts and services in connection with the
disposition of the Company’s SPI Group on November 15, 2006, the Company shall
pay to Executive a bonus in an amount equal to Cdn $350,000 (less applicable
tax
withholding amounts) not later than ten (10) days after execution and delivery
of the Agreement. The payments referenced in this Section 2 are in full
satisfaction of any and all claims for compensation that Executive may have
against Company relating to his employment through and including December 31,
2006.
(b) Consulting
Services.
For the
one-year period beginning effective January 1, 2007 through and until December
31, 2007 (the “Consulting
Period”),
Executive shall provide consulting services to the Company for not more than
twenty hours per week. The consulting services (the “Consulting
Services”)
to be
performed by Executive shall include, without limitation, those services
expressly contemplated by that certain “Transition Services Agreement” dated as
of November 15, 2006, by and among the Company, the entities comprising the
SPI
Group and the purchaser of the SPI Group. During the Consulting Period, (i)
the
Executive shall report directly to the Chief Executive Officer of the Company
or
his designee at such times and in such detail as shall reasonably be required,
and (ii) the Company shall provide office space for Executive’s use at the
Company’s Toronto, Ontario offices in order for Executive to perform the
Consulting Services.
(c) Consulting
Fees; Continued Service as a Director.
As
compensation for Executive’s Consulting Services to the Company, the Company
shall pay to the Executive an annualized amount equal to Cdn $250,000 during
the
Consulting Period in accordance with its normal payroll practices. In addition,
the Executive has agreed to continue to serve as a member of the Company’s Board
of Directors with the title of Vice Chairman, and the Human Resources and
Compensation Committee of the Board of Directors (the “Compensation
Committee”)
has
authorized Executive to receive fees and to be eligible to receive equity grants
as a non-management member of the Board of Directors, subject to the discretion
and approval of the Compensation Committee.
(d) Expenses.
The
Company agrees to pay or to reimburse the Executive for all reasonable,
ordinary, necessary and documented business or entertainment expenses incurred
during the Consulting Period in the performance of the Consulting Services
hereunder in accordance with the policy of the Company as from time to time
in
effect.
3. Release
of Claims.
By
signing this Agreement, Executive, on behalf of himself and his current, former,
and future heirs, executors, administrators, attorneys, agents and assigns,
releases and waives all legal claims in law or in equity of any kind whatsoever
that Executive has or may have against Company, its parents, subsidiaries and
affiliates, and their respective officers, directors, employees, shareholders,
members, agents, attorneys, trustees, fiduciaries, representatives, benefit
plans and plan administrators, successors and/or assigns, and all persons or
entities acting by, through, under, or in concert with any or all of them
(collectively, the “Released
Parties”).
This
release and waiver covers all rights, claims, actions and suits of all kinds
and
descriptions that Executive now
has
or has ever had,
whether
known or unknown or based on facts now known or unknown, fixed or contingent,
against the Released Parties, occurring prior to and including the date that
Executive executes this Agreement, including, without limitation:
a. any
claims for wrongful termination, defamation, invasion of privacy, intentional
infliction of emotional distress, or any other common law claims;
b. any
claims for the breach of any written, implied or oral contract between Executive
and Company, including but not limited to any contract of
employment;
c. any
claims of discrimination, harassment or retaliation based on such things as
age,
national origin, ancestry, race, religion, sex, sexual orientation, or physical
or mental disability or medical condition;
d. any
claims for payments of any nature, including but not limited to wages, overtime
pay, vacation pay, severance pay, commissions, bonuses and benefits or the
monetary equivalent of benefits, but not including the consideration being
provided to Executive pursuant to Section 2 of this Agreement; and
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e. all
claims that Executive has or that may arise under the common law and all
federal, provincial and local statutes, ordinances, rules, regulations and
orders.
This
Agreement shall be binding upon and inure to the benefit of Executive and the
Released Parties and any other individual or entity who may claim any interest
in the matter through Executive. Executive also acknowledges that he has not
assigned any of his rights to make the aforementioned claims or
demands.
4. Non-Admission.
This
Agreement shall not in any way be construed as an admission by the Company
of
any liability for any reason, including, without limitation, based on any claim
that the Company has committed any wrongful or discriminatory act.
5. Attorney
Review; Review Period. Executive
is hereby advised that he should consult with an attorney prior to executing
this Agreement. Executive is also advised that he has twenty-one (21) days
from
the date this Agreement is delivered to him within which to consider whether
he
will sign it. If Executive signs this Agreement, he acknowledges that he
understands that he may revoke this Agreement within seven (7) days after he
has
signed it by notifying the Company in writing that he has revoked this
Agreement.
6. Non-Disparagement.
Executive agrees that he will not say, write, or cause to be said or written,
any statement that may be considered defamatory, derogatory, or disparaging
of
any of the Released Parties.
7.
Confidentiality/Company
Property.
Executive acknowledges that he has had access to confidential, proprietary
business information of the Company as a result of employment, and Executive
hereby agrees not to use such information personally or for the benefit of
others. Executive also agrees not to disclose to anyone any confidential
information at any time in the future so long as it remains confidential.
Executive further agrees to keep the terms and the existence of this Agreement
confidential and not to discuss it with anyone other than his attorney, tax
advisor, spouse, or as may be required by law. Executive represents
that he has returned all Company property in his possession.
8. Entire
Agreement; No Other Promises.
Except
as to any confidentiality, non-compete and/or non-solicitation agreements signed
by Executive upon or during his employment with Company, Executive hereby
acknowledges and represents that this Agreement contains the entire agreement
between Executive and the Company, and it supersedes any and all previous
agreements concerning the subject matter hereof. Executive further acknowledges
and represents that neither Company nor any of its agents, representatives
or
employees have made any promise, representation or warranty whatsoever, express,
implied or statutory, not contained herein, concerning the subject matter
hereof, to induce Executive to execute this Agreement, and Executive
acknowledges that he has not executed this Agreement in reliance on any such
promise, representation or warranty.
9. Equitable
Relief. Executive
acknowledges that a remedy at law for any breach or attempted breach of this
Agreement will be inadequate, and agrees that Company shall be entitled to
specific performance and injunctive and other equitable relief in the case
of
any such breach or attempted breach. It is also agreed that, in addition to
any
other remedies, in the event of a breach of this Agreement by Executive, Company
may withhold, retain and recover all or any portion of the amounts referenced
in
Section 2 of this Agreement.
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10. Governing
Law. This
Agreement shall be construed and enforced in accordance with, and governed
by,
the laws of the Province of Ontario, Canada.
11. Amendment.
This
Agreement may not be amended or modified in any way, except pursuant to a
written instrument signed by both parties.
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HAVING
READ AND UNDERSTOOD THE RELEASE, CONSULTED COUNSEL OR VOLUNTARILY ELECTED NOT
TO
CONSULT COUNSEL, AND HAVING HAD SUFFICIENT TIME TO CONSIDER WHETHER TO ENTER
INTO THIS AGREEMENT, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF
THE
DAY AND YEAR FIRST WRITTEN BELOW.
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| By: | /s/ Xxxxxxx Xxxxxx | |
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Xxxxxxx Xxxxxx
Dated: January 12,
2007
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| MDC Partners Inc. | ||
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| By: | /s/ Xxxxxxxx Xxxxxx | |
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Name:
Xxxxxxxx Xxxxxx
Title:
General Counsel
Dated: January 12,
2007
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