Exhibit 10.1
AGREEMENT AND GENERAL RELEASE
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This AGREEMENT AND GENERAL RELEASE ("AGREEMENT") is entered into by and
between
XXXXXX & XXXXX CORPORATION ("XXXXXX")
And
R. XXXX XXXXXXX ("EMPLOYEE")
WHEREAS, Employee's employment with Belden will be or has been
terminated; and
WHEREAS, Xxxxxx has offered certain benefits to Employee in return for
Employee's executing this Agreement; and
WHEREAS, Employee and Belden wish to resolve all issues arising from
Employee's employment and termination of employment.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound thereby, the parties agree as follows:
1. Employee acknowledges that Employee's employment with Xxxxxx
terminated effective February 11, 2005 (the "Termination Date") and Employee
resigned as an officer of Belden effective January 26, 2005.
2. Employee acknowledges that Employee will receive the benefits
specified in Exhibit A in return for his execution (and non revocation) of this
Agreement.
3. Employee acknowledges that by signing this Agreement and accepting
the benefits of it, that Employee is giving up forever the right to seek any
relief from Xxxxxx or the Xxxxxx & Blake Corporation 1999 Change in Control
Protection Plan for Key Employees (the "Plan") or any person associated with
Belden or the Plan for any event occurring prior to the execution of this
Agreement by all parties, including Employee's decision to accept the benefits
specified in Exhibit A and consequences of that decision. Pursuant to that
understanding and as consideration for the payments under this Agreement, which
Employee hereby acknowledges that
Employee would not otherwise be entitled to receive, Employee irrevocably and
unconditionally releases Xxxxxx, its present and former officers, directors,
agents, employees, contractors, successors and assigns and the Plan and all
fiduciaries of the Plan, and all other employee benefit or compensation plans or
programs of Belden, except Employee's vested benefits under Xxxxxx'x 401(k)
Plan, (separately and collectively "Releasees"), jointly and individually, from
any and all claims, known or unknown, which Employee, Employee's heirs,
successors, or assigns have or may have against Releasees, and any and all
liability which the Releasees may have to Employee. This Release relates to
claims arising prior to and during Employee's employment by Belden, whether
those claims are past or present, whether they arise from common law, contract
or statute, whether they arise from labor laws, discrimination laws, or any
other law, rule or regulation. Employee specifically acknowledges that this
Release is applicable to any claim under the AGE DISCRIMINATION IN EMPLOYMENT
ACT, as amended by the OLDER WORKERS BENEFIT PROTECTION ACT, the Civil Rights
Act of 1964 and the American's With Disabilities Act, the Family and Medical
Leave Act of 1993 and any similar state law. Employee acknowledges that Employee
is releasing all claims Employee may have under the Plan. This Release is for
any type of claim Employee may have, including but not limited to reinstatement,
wages, back pay, front pay, severance pay, compensatory damages, punitive
damages, damages for pain and suffering, or attorneys' fees. Employee agrees
that Employee will not hereafter be entitled to any benefit from any claim or
proceeding filed by Employee or on Employee's behalf with any agency or court.
Employee further agrees that Employee will not seek employment with Belden after
termination, and if Employee does seek employment, Belden may deny such
employment and Employee will have no claim whatsoever because of said denial.
The aforementioned restriction on future employment shall not apply in the event
that Employee secures employment with a company, which is later acquired by
Xxxxxx.
4. Employee acknowledges and agrees that in the performance of
Employee's duties as an employee of Xxxxxx, Employee was brought into frequent
contact with, had access to,
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and became informed of confidential and proprietary information of Xxxxxx and/or
information which is a trade secret of Xxxxxx (collectively, "Confidential
Information"), as more fully described in the following paragraphs. Employee
acknowledges and agrees that the Confidential Information of Xxxxxx gained by
Employee during Employee's association with Xxxxxx was developed by and/or for
Belden through substantial expenditure of time, effort and money and constitutes
valuable and unique property of Xxxxxx.
Employee will keep in strict confidence, and will not, directly or
indirectly, at any time, disclose, furnish, disseminate, make available, use or
suffer to be used in any manner any Confidential Information of Belden without
limitation as to when or how Employee may have acquired such Confidential
Information. Employee specifically acknowledges that Confidential Information
includes any and all information, whether reduced to writing (or in a form from
which information can be obtained, translated, or derived into reasonably
useable form), or maintained in the mind or memory of the Employee and whether
compiled or created by Xxxxxx, which derives independent economic value from not
being readily known to or ascertainable by proper means by others who can obtain
economic value from the disclosure or use of such information, that reasonable
efforts have been put forth by Belden to maintain the secrecy of Confidential
Information, that such Confidential Information is and will remain the sole
property of Belden, and that any retention or use by Employee of Confidential
Information after the termination of Employee's employment with and services for
Belden shall constitute a misappropriation of Xxxxxx'x Confidential Information.
Any violation of the foregoing obligations will constitute a breach of
Employee's obligations that will permit Xxxxxx to terminate any further
commitments under this Agreement as liquidated damages, but all of Employee's
obligations and releases shall remain in effect. Xxxxxx'x termination of further
payments shall not preclude Belden from seeking additional damages from Employee
as a result of Employee's violation.
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Employee further agrees that Employee shall return, within ten (10)
days of the Termination Date, in good condition, all property of Belden then in
Employee's possession or control, including, without limitation, (i) property,
documents and/or all other materials (including copies, reproductions, summaries
and/or analyses) which constitute, refer or relate to Confidential Information
of Xxxxxx, (ii) keys to Xxxxxx property, (iii) files and (iv) blueprints or
other drawings.
Employee further acknowledges and agrees that Employee's obligation
of confidentiality shall survive until and unless such Confidential Information
of Belden shall have become, through no fault of Employee, generally known to
the public or Employee is required by law (after providing Xxxxxx with notice
and opportunity to contest such requirement) to make disclosure. Employee's
obligations under this paragraph are in addition to, and not in limitation or
preemption of, all other obligations of confidentiality which Employee may have
to Belden under general legal or equitable principles or statutes.
5. Employee agrees that Employee will not for a period of twelve (12)
months following the Termination Date on Employee's behalf or on behalf of any
person or entity, attempt in any fashion to hire or otherwise obtain the
services of any current employee of Belden. The aforementioned restriction on
hiring shall not apply to any current employees of Belden whose employment with
Belden terminates without any solicitation by Employee. Notwithstanding anything
to the contrary contained in this Agreement, Employee may, at Employee's
discretion, disclose the requirements of this paragraph 5 to prospective
employers.
6. The parties mutually agree that neither shall disparage, malign or
otherwise say or do anything which could adversely affect the reputation or
standing of the other party.
7. Xxxxxx acknowledges that this Agreement does not waive any claim
which Employee may have to any vested benefits under Xxxxxx'x 401(k) Plan.
8. The parties agree that the execution of this Agreement is in
compromise and final settlement between the parties of all disputed matters,
whether asserted or not, constitutes full
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satisfaction of all claims made or which could be made, and does not in any way
admit liability or wrongdoing by any entity or individual.
9. The parties intend this Agreement to be legally binding upon and
inure to the benefit of each of them and their respective successors and
assigns.
10. This Agreement is the complete agreement between the parties, and
there are no written or oral understandings, promises or agreements directly or
indirectly related to this Agreement that are not incorporated herein in full.
11. Employee states that Employee has carefully read this Agreement,
that Employee has been advised prior to execution of this Agreement to seek the
advice of an attorney and that this Agreement also advises Employee to seek the
advice of an attorney, that Employee knows and understands the contents of this
Agreement, that Employee has been given adequate time to consider whether to
execute the Agreement, that Employee executes this Agreement knowingly and
voluntarily as Employee's own free act and deed, and that this Agreement was
freely entered into without fraud, duress or coercion.
12. In compliance with the Older Workers Benefit Protection Act,
Employee further acknowledges that Employee was given at least twenty-one (21)
days in which to consider whether to execute this Agreement before being
required to make a decision. Employee further acknowledges that Employee may
revoke the Agreement for a period of seven (7) days from the date that Employee
executes this Agreement, such revocation to be delivered in writing to Xxxxxx,
and that this Agreement shall be effective only upon expiration of this
revocation period, provided Employee does not revoke his acceptance hereof prior
to the end of such period.
13. This Agreement shall be and remain in effect despite any alleged
breach of this Agreement or the discovery or existence of any new or additional
fact, or any fact different from that which Belden or Employee now know or
believe to be true. Notwithstanding the foregoing, nothing in this Agreement
shall be construed as or constitute a release of any party's rights to enforce
the terms of this Agreement.
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14. This Agreement shall be governed by and interpreted under the laws
of the State of Ohio, and the parties to this Agreement agree that jurisdiction
for any action filed to enforce this Agreement or any provision hereof, or any
action which involves interpretation of this Agreement or any provision hereof,
shall be proper only in state court located in Xxxxx County, Ohio, or in federal
court located in Franklin County, Ohio.
15. Failure to insist upon strict compliance with any of the terms,
covenants, or conditions of this Agreement shall not be deemed a waiver of any
such term, covenant, or condition, nor shall any failure at any one time or more
times be deemed a waiver or relinquishment at any other time or times of any
right under the terms, covenants, or conditions hereof.
16. This Agreement shall be construed and interpreted so as to be
enforceable to the fullest extent permitted by law. If any provision of this
Agreement shall be determined to be unlawful, improper, or unenforceable for any
reason in any jurisdiction, such unenforceability shall not affect its validity
or enforceability in any other jurisdiction, nor shall it effect the validity or
enforceability of any other provision hereof.
17. No modification or amendment of this Agreement shall be effective
unless the same be in a writing duly executed by all the parties hereto.
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IN WITNESS WHEREOF, and intending to be legally bound, each of the
parties hereto has caused this Agreement to be executed as of the dates
indicated.
Date: February 11, 2005 XXXXXX & XXXXX CORPORATION
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By: /s/ Xxxxxxxx X. Xxxxxxxx
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Date: February 11, 2005 /s/ R. Xxxx Xxxxxxx
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R. Xxxx Xxxxxxx
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EXHIBIT A
R. XXXX XXXXXXX
I. Consideration
1. Fifteen (15) months of severance pay in the total amount of
$215,312.50, less required tax withholdings, to be paid within five (5) calendar
days following the expiration of the revocation period set forth in Paragraph 12
of the Agreement. As additional consideration, Xxxxxx hereby relinquishes any
claim that Employee was terminated for cause pursuant to Section 2.4 of the
Plan.
2. Employee shall receive in addition to the payments specified in
Paragraph 1, payment for any accrued and unused vacation days. Employee shall
receive this lump sum payment on the next regular pay day after the Termination
Date, without regard to whether Employee executes this Agreement.
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