Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is dated as of this
July 16, 2006, between Xxxxxx CDT Inc., a Delaware corporation (the "COMPANY"),
and Xxxxx X. Xxxxxxx (the "EXECUTIVE").
WITNESSETH:
WHEREAS, the Company has employed Executive as its Vice President,
Operations and President of Xxxxxx Americas division, and Company and Executive
desire to reflect the continuation of such employment by this Agreement;
WHEREAS, the Company and Executive desire to enter into this Agreement to
set forth the terms of Executive's employment by the Company;
NOW THEREFORE, in consideration of the foregoing, of the mutual promises
contained herein and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. POSITION/DUTIES.
(a) Executive shall serve as the Vice President, Operations of the
Company and President of its Xxxxxx Americas division. In such capacity,
Executive shall have active and general supervision and management over the
business and affairs of Xxxxxx Americas.
(b) Executive shall use Executive's best efforts to perform faithfully
and efficiently the duties and responsibilities assigned to Executive hereunder
and devote substantially all of Executive's business time to the performance of
Executive's duties with the Company; provided, the foregoing shall not prevent
Executive from participating in charitable, civic, educational, professional or
community affairs so long as such activities do not materially interfere with
the performance of Executive's duties hereunder or create a potential business
conflict or the appearance thereof.
2. TERM OF AGREEMENT. This Agreement shall be effective on the date hereof
(the "EFFECTIVE DATE") and shall end on the third anniversary of the Effective
Date. The term of this Agreement shall be automatically extended thereafter for
successive one (1) year periods unless, at least ninety (90) days prior to the
end of the initial term of this Agreement or the then current succeeding
one-year extended term of this Agreement, the Company or Executive has notified
the other that the term hereunder shall terminate upon its expiration date. The
initial term of this Agreement, as it may be extended from year to year
thereafter, is herein referred to as the "TERM." The foregoing to the contrary
notwithstanding, upon the occurrence of a Change in Control (defined below) at
any time after the first anniversary of the Effective Date, the Term of this
Agreement shall be extended to the second anniversary of the date of the
occurrence of such Change in Control and shall be subject to expiration
thereafter upon notice by Executive or the Company to the other party or to
automatic successive additional one-year periods, as the case may be, in the
manner provided above. If Executive remains employed by the Company beyond the
expiration of the Term, he shall be an employee at-will; except that any
provisions identified as surviving shall continue. In all events hereunder,
Executive's
employment is subject to earlier termination pursuant to Section 7 hereof, and
upon such earlier termination the Term shall be deemed to have ended.
3. BASE SALARY. As of the Effective Date, the Company shall continue to pay
Executive a base salary (the "BASE SALARY") at an annual rate of $368,000,
payable in accordance with the regular payroll practices of the Company.
Executive's Base Salary shall be subject to annual review by the Company's Chief
Executive Officer ("CEO") and may be adjusted from time to time by the CEO (as
approved by the Compensation Committee of the Board of Directors of the
Company). The base salary as determined herein from time to time shall
constitute "Base Salary" for purposes of this Agreement.
4. ANNUAL BONUS. As of the Effective Date, Executive shall continue to be
eligible to participate in the Company's management incentive (bonus) plan and
any successor annual bonus plans. Executive shall have the opportunity to earn
an annual target bonus, measured against performance criteria to be determined
by the Company's Board (or a committee thereof).
5. STOCK OWNERSHIP. Executive shall be subject to, and shall comply with,
the stock ownership guidelines of the Company as may be in effect from time to
time.
6. EMPLOYEE BENEFITS. As of the Effective Date:
(a) BENEFIT PLANS. Executive shall continue to be entitled to
participate in all employee benefit plans of the Company including, but not
limited to, equity, pension, thrift, profit sharing, medical coverage,
education, or other retirement or welfare benefits that the Company has adopted
or may adopt, maintain or contribute to for the benefit of its senior executives
in accordance with the terms of such plans and programs.
(b) VACATION. Executive shall continue to be entitled to annual paid
vacation in accordance with the Company's policy applicable to senior
executives.
(c) BUSINESS AND ENTERTAINMENT EXPENSES. Upon presentation of
appropriate documentation, Executive shall be reimbursed in accordance with the
Company's expense reimbursement policy for all reasonable and necessary business
expenses incurred in connection with the performance of Executive's duties
hereunder.
(d) CERTAIN AMENDMENTS. Nothing herein shall be construed to prevent
the Company from amending, altering, terminating or reducing any plans, benefits
or programs.
7. TERMINATION. Executive's employment and the Term shall terminate on the
first of the following to occur:
(a) DISABILITY. Upon written notice by the Company to Executive of
termination due to Disability, while Executive remains Disabled. For purposes of
this Agreement, "DISABILITY" shall have the meaning defined under the Company's
then-current long-term disability insurance plan in which Executive
participates.
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(b) DEATH. Automatically on the date of death of Executive.
(c) CAUSE. Immediately upon written notice by the Company to Executive
of a termination of Executive's employment for Cause. "CAUSE" shall mean:
(i) Executive's willful and continued failure to perform
substantially his duties owed to the Company or its affiliates after a
written demand for substantial performance is delivered to him specifically
identifying the nature of such unacceptable performance, which is not cured
by Executive within a reasonable period, not to exceed thirty (30) days;
(ii) Executive is convicted of (or pleads guilty or no contest
to) a felony or any crime involving moral turpitude; or
(iii) Executive has engaged in conduct that constitutes gross
misconduct in the performance of his employment duties.
An act or omission by Executive shall not be "willful" if conducted in good
faith and with Executive's reasonable belief that such conduct is in the
best interests of the Company.
(d) WITHOUT CAUSE. Upon written notice by the Company to Executive of
an involuntary termination of Executive's employment other than for Cause (and
other than due to his Disability).
(e) GOOD REASON. Upon written notice by Executive to the Company of a
voluntary termination of Executive's employment at any time during a Protection
Period (defined in Section 10 below), for Good Reason. "GOOD REASON" shall mean,
without the express written consent of Executive, the occurrence of any of the
following events during a Protection Period:
(i) Executive's Base Salary or annual target bonus opportunity is
reduced;
(ii) Executive's duties or responsibilities are negatively and
materially changed in a manner inconsistent with Executive's position
(including status, offices, titles, and reporting responsibilities) or
authority; or
(iii) The Company requires Executive's principal office to be
relocated more than 50 miles from its location as of the date immediately
preceding the Change in Control.
(f) VOLUNTARY TERMINATION FOR ANY REASON (WITHOUT GOOD REASON DURING A
PROTECTION PERIOD). Upon at least thirty (30) days' prior written notice by
Executive to the Company of Executive's voluntary termination of employment (i)
for any reason prior to or after a Protection Period or (ii) without Good Reason
during a Protection Period, in either case which the Company may, in its sole
discretion, make effective earlier than any termination date set forth in such
notice.
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8. CONSEQUENCES OF TERMINATION. Any termination payments made and benefits
provided under this Agreement to Executive shall be in lieu of any termination
or severance payments or benefits for which Executive may be eligible under any
of the plans, policies or programs of the Company or its affiliates, it being
understood that stock options and other Long-Term Awards (as defined in Section
11 hereof) shall be treated as addressed in Section 11 hereof. Upon termination
of Executive's employment, the following amounts and benefits shall be due to
Executive:
(a) DEATH; DISABILITY. If Executive's employment terminates due to
Executive's death or Disability, then the Company shall pay or provide Executive
(or the legal representative of his estate in the case of his death) with:
(i) (A) any accrued and unpaid Base Salary through the date of
termination and any accrued and unused vacation in accordance with Company
policy; and (B) reimbursement for any unreimbursed expenses, incurred and
documented in accordance with applicable Company policy, through the date
of termination (collectively, "ACCRUED OBLIGATIONS");
(ii) Any unpaid bonus earned with respect to any fiscal year
ending on or preceding the date of termination, payable when bonuses are
paid generally to senior executives for such year;
(iii) A pro-rated annual bonus for the fiscal year in which such
termination occurs, the amount of which shall be based on actual
performance under the applicable bonus plan and a fraction, the numerator
of which is the number of days elapsed during the performance year through
the date of termination and the denominator of which is 365, which
pro-rated bonus shall be paid when bonuses are paid generally to senior
executives for such year;
(iv) Any disability insurance benefits, or life insurance
proceeds, as the case may be, as may be provided under the Company plans in
which Executive participates immediately prior to such termination; and
(b) VOLUNTARY TERMINATION (INCLUDING VOLUNTARY TERMINATION WITHOUT
GOOD REASON DURING A PROTECTION PERIOD); INVOLUNTARY TERMINATION WITHOUT CAUSE
AT OR AFTER AGE 65; INVOLUNTARY TERMINATION FOR CAUSE.
(i) If Executive's employment should be terminated (i) by
Executive for any reason at any time other than during a Protection Period,
or (ii) by Executive without Good Reason during a Protection Period, then
the Company shall pay to Executive any Accrued Obligations in accordance
with Section 8(a)(i).
(ii) If Executive's employment is terminated by the Company
without Cause and other than for Disability at or after Executives'
attainment of age 65, the Company shall pay to Executive any Accrued
Obligations.
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(iii) If Executive's employment is terminated by the Company for
Cause, the Company shall pay to Executive any Accrued Obligations.
(c) TERMINATION WITHOUT CAUSE. If at any time (A) prior to Executive's
attainment of age 65 and (B) other than during a Protection Period, Executive's
employment by the Company is terminated by the Company without Cause (and other
than a termination for Disability), then the Company shall pay or provide
Executive with:
(i) (A) Executive's Accrued Obligations, payable in accordance
with Section 8(a)(i);
(ii) Any unpaid bonus earned with respect to any fiscal year
ending on or preceding the date of termination, payable when bonuses are
paid generally to senior executives for such year;
(iii) A pro-rated annual bonus for the fiscal year in which such
termination occurs, the amount of which shall be based on actual
performance under the applicable bonus plan and a fraction, the numerator
of which is the number of days elapsed during the performance year through
the date of termination and the denominator of which is 365, which
pro-rated bonus shall be paid when bonuses are paid generally to senior
executives for such year;
(iv) Severance payments in the aggregate amount equal to the sum
of (A) Executive's then Base Salary plus (B) his annual target bonus, which
amount shall be payable to Executive in equal payroll installments over a
period of twelve (12) months; and
(v) Subject to Executive's continued co-payment of premiums,
continued participation for twelve (12) months in the Company's medical
benefits plan which covers Executive and his eligible dependents upon the
same terms and conditions (except for the requirements of Executive's
continued employment) in effect for active employees of the Company. In the
event Executive obtains other employment that offers substantially similar
or more favorable medical benefits, such continuation of coverage by the
Company under this subsection shall immediately cease. The continuation of
health benefits under this subsection shall reduce the period of coverage
and count against Executive's right to healthcare continuation benefits
under COBRA.
9. CONDITIONS. Any payments or benefits made or provided to Executive
pursuant to any subsection of Section 8, other than Accrued Obligations, Section
10(b) or Section 10(c), are subject to Executive's:
(a) compliance with the provisions of Section 12 hereof;
(b) delivery to the Company of an executed Agreement and General
Release (the "GENERAL RELEASE"), which shall be substantially in the form
attached hereto as Exhibit A within twenty-one (21) days after presentation
thereof by the Company to Executive; and
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(c) delivery to the Company of a resignation from all offices,
directorships and fiduciary positions held by Executive with the Company, its
affiliates and employee benefit plans.
Notwithstanding the due date of any post-employment payments, any amounts due
following a termination under this Agreement (other than Accrued Obligations)
shall not be payable until after the expiration of any statutory revocation
period applicable to the General Release without Executive having revoked such
General Release, and, subject to the provisions of Section 21 hereof, any such
amounts shall be paid to Executive within thirty (30) days thereafter.
Notwithstanding the foregoing, Executive shall be entitled to any Accrued
Obligations, payable without regard for the conditions of this Section 9.
10. CHANGE IN CONTROL; EXCISE TAX.
(a) CHANGE IN CONTROL. A "CHANGE IN CONTROL" of the Company shall be
deemed to have occurred if any of the events set forth in any one of the
following subparagraphs shall occur:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT")) (a "PERSON") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of more than 50% of either (i) the then-outstanding shares of common
stock of the Company (the "OUTSTANDING COMPANY COMMON STOCK") or (ii) the
combined voting power of the then-outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"OUTSTANDING COMPANY VOTING SECURITIES"); provided, however, that for
purposes of this subsection (a), the following acquisitions shall not
constitute a Change of Control: (1) any acquisition directly from the
Company, (2) any acquisition by the Company, (3) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or (4) any
acquisition by any corporation pursuant to a transaction which complies
with clauses (1) and (2) of subsection (iii) of this definition;
(ii) individuals who, as of the date hereof, constitute the Board
(the "INCUMBENT BOARD") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board;
(iii) consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of
the Company (a "BUSINESS COMBINATION"), in each case, unless, following
such Business Combination, (1) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly
or indirectly, more than 50% of, respectively, the then-outstanding shares
of
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common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries) and in
substantially the same proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, and (2) at least
a majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(b) QUALIFYING TERMINATION. If, prior to Executive's attainment of age
65, Executive's employment is involuntarily terminated by the Company without
Cause (and other than due to his Disability) or is voluntarily terminated by
Executive for Good Reason, in either case only during the period commencing on
the occurrence of a Change in Control of the Company and ending on the second
anniversary of date of the Change in Control ("PROTECTION PERIOD"), then the
Company shall pay or provide Executive with:
(i) Executive's Accrued Obligations, payable in accordance with
Section 8(a)(i);
(ii) Any unpaid bonus earned with respect to any fiscal year
ending on or preceding the date of termination, payable when bonuses are
paid generally to senior executives for such year;
(iii) A pro-rated annual bonus for the fiscal year in which such
termination occurs, the amount of which shall be based on target
performance and a fraction, the numerator of which is the number of days
elapsed during the performance year through the date of termination and the
denominator of which is 365, which pro-rated bonus shall be paid when
bonuses are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal
to the product of (A) the sum of (1) Executive's highest Base Salary during
the Protection Period plus (2) his annual target bonus multiplied by (B)
two (2);
(v) Subject to Executive's continued co-payment of premiums,
continued participation for two (2) years in the Company's medical benefits
plan which covers Executive and his eligible dependents upon the same terms
and conditions (except for the requirements of Executive's continued
employment) in effect for active employees of the Company. In the event
Executive obtains other employment that offers substantially similar or
more favorable medical benefits, such continuation of coverage by the
Company under this subsection shall immediately cease. The continuation of
health benefits under
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this subsection shall reduce the period of coverage and count against
Executive's right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 8(c)iv shall be paid in a
lump sum within ten (10) business days after the Executive's receipt of the
calculation from a specified advisor.
(c) EXCISE TAX.
(i) If it is determined that any amount, right or benefit paid or
payable (or otherwise provided or to be provided) to the Executive by the
Company or any of its affiliates under this Agreement or any other plan,
program or arrangement under which Executive participates or is a party,
other than amounts payable under this Section 10(d), (collectively, the
"PAYMENTS"), would constitute an "excess parachute payment" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended
("CODE"), subject to the excise tax imposed by Section 4999 of the Code, as
amended from time to time (the "EXCISE TAX"), and the present value of such
Payments (calculated in a manner consistent with that set forth in the
applicable regulations promulgated under Section 280G of the Code) is equal
to or less than 110% of the threshold at which such amount becomes an
"excess parachute payment," then the amount of the Payments payable to the
Executive under this Agreement shall be reduced (a "REDUCTION") to the
extent necessary so that no portion of such Payments payable to the
Executive is subject to the Excise Tax.
(ii) In the event it shall be determined that the amount of the
Payments payable to the Executive is more than 110% greater than the
threshold at which such amount becomes an "excess parachute payment," then
the Executive shall be entitled to receive an additional payment from the
Company (a "GROSS-UP PAYMENT") in an amount such that, after payment by the
Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income and
employment taxes and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(iii) All determinations required to be made under this Section
10(d), including whether and when a Gross-Up Payment or a Reduction is
required, the amount of such Gross-Up Payment or Reduction and the
assumptions to be utilized in arriving at such determination, shall be made
by an independent, nationally recognized accounting firm mutually
acceptable to the Company and the Executive (the "AUDITOR"); provided that
in the event a Reduction is determined to be required, the Executive may
determine which Payments shall be reduced in order to comply with the
provisions of this Section 10(d). The Auditor shall promptly provide
detailed supporting calculations to both the Company and Executive
following any determination that a Reduction or Gross-Up Payment is
necessary. All fees and expenses of the Auditor shall be paid by the
Company. Any Gross-Up Payment, as determined pursuant to this Section
10(d), shall be paid by the Company to the Executive within five (5) days
of the receipt of the Auditor's determination. All determinations made by
the Auditor shall be binding upon the
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Company and the Executive; provided that if, notwithstanding the Auditor's
initial determination, the Internal Revenue Service (or other applicable
taxing authority) determines that an additional Excise Tax is due with
respect to the Payments, then the Auditor shall recalculate the amount of
the Gross-Up Payment or Reduction Amount, if applicable, based upon the
determinations made by the Internal Revenue Service (or other applicable
taxing authority) after taking into account any additional interest and
penalties (the "RECALCULATED AMOUNT") and the Company shall pay to the
Executive the excess of the Recalculated Amount over the Gross-Up Payment
initially paid to the Executive or the amount of the Payments after the
Reduction, as applicable, within five (5) days of the receipt of the
Auditor's recalculation the Gross-Up Payment.
11. LONG-TERM AWARDS. All of Executive's stock options, stock appreciation
rights, restricted stock units, performance share units and any other long-term
incentive awards granted under any long-term incentive plan of the Company,
whether granted before or after the Effective Date (collectively "LONG-TERM
AWARDS"), shall remain in effect in accordance with their terms and conditions,
including with respect to the consequences of the termination of Executive's
employment or a change in control, and shall not be in any way amended, modified
or affected by this Agreement.
12. EXECUTIVE COVENANTS.
(a) CONFIDENTIALITY. Executive agrees that Executive shall not,
commencing on the date hereof and at all times thereafter, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any
person, other than in the course of Executive's employment and for the benefit
of the Company, any nonpublic, proprietary or confidential information,
knowledge or data relating to the Company, any of its subsidiaries, affiliated
companies or businesses, which shall have been obtained by Executive during
Executive's employment by the Company. The foregoing shall not apply to
information that (i) was known to the public prior to its disclosure to
Executive; (ii) becomes known to the public subsequent to disclosure to
Executive through no wrongful act of Executive or any representative of
Executive; or (iii) Executive is required to disclose by applicable law,
regulation or legal process (provided that Executive provides the Company with
prior notice of the contemplated disclosure and reasonably cooperates with the
Company at its expense in seeking a protective order or other appropriate
protection of such information). Notwithstanding clauses (i) and (ii) of the
preceding sentence, Executive's obligation to maintain such disclosed
information in confidence shall not terminate where only portions of the
information are in the public domain.
(b) NONSOLICITATION. Commencing on the date hereof, and continuing
during Executive's employment with the Company and for the twelve (12) month
period following termination of Executive's employment for any reason (a
twenty-four (24) month post-employment period in the event of a termination of
Executive's employment for any reason at any time during a Protection Period)
("RESTRICTED PERIOD"), Executive agrees that Executive shall not, without the
prior written consent of the Company, directly or indirectly, individually or on
behalf of any other person, firm, corporation or other entity: (i) solicit,
recruit or employ (whether as an employee, officer, director, agent, consultant
or independent contractor) any person who was or is at any time during the six
(6) months preceding Executive's termination of employment an employee,
representative, officer or director of the Company; (ii) take any action
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to encourage or induce any employee, representative, officer or director of the
Company to cease their relationship with the Company for any reason; or (iii)
knowingly solicit, aid or induce any customer of the Company or any of its
subsidiaries or affiliates to purchase goods or services then sold by the
Company or any of its subsidiaries or affiliates from another person, firm,
corporation or other entity or assist or aid any other persons or entity in
identifying or soliciting any such customer.
(c) NONCOMPETITION. Executive acknowledges that Executive performs
services of a unique nature for the Company that are irreplaceable, and that
Executive's performance of such services to a competing business will result in
irreparable harm to the Company. Accordingly, during the Restricted Period,
Executive agrees that Executive shall not, directly or indirectly, own, manage,
operate, control, be employed by (whether as an employee, consultant,
independent contractor or otherwise, and whether or not for compensation) or
render services to any person, firm, corporation or other entity, in whatever
form, engaged in any business of the same type as any business in which the
Company or any of its subsidiaries or affiliates is engaged on the date of
termination or in which they have proposed, on or prior to such date, to be
engaged in on or after such date at any time during the twelve (12)-month period
ending with the date of termination for any reason (a twenty-four month
post-employment period in the event of termination of Executive's employment for
any reason at any time during a Protection Period), in any locale of any country
in which the Company conducts business. This Section 12(c) shall not prevent
Executive from owning not more than two percent (2%) of the total shares of all
classes of stock outstanding of any publicly held entity engaged in such
business.
(d) NONDISPARAGEMENT. Each of Executive and the Company (for purposes
hereof, "the Company" shall mean only (i) the Company by press release or other
formally released announcement and (ii) the executive officers and directors
thereof and not any other employees) agrees not to make any public statements
that disparage the other party, or in the case of the Company, its respective
affiliates, employees, officers, directors, products or services.
Notwithstanding the foregoing, statements made in the course of sworn testimony
in administrative, judicial or arbitral proceedings (including, without
limitation, depositions in connection with such proceedings) shall not be
subject to this Section 12(d). Executive's provision shall also not cover normal
competitive statements which do not cite Executive's employment by the Company.
(e) RETURN OF COMPANY PROPERTY AND RECORDS. Executive agrees that upon
termination of Executive's employment, for any cause whatsoever, Executive will
surrender to the Company in good condition (reasonable wear and tear excepted)
all property and equipment belonging to the Company and all records kept by
Executive containing the names, addresses or any other information with regard
to customers or customer contacts of the Company, or concerning any proprietary
or confidential information of the Company or any operational, financial or
other documents given to Executive during Executive's employment with the
Company.
(f) COOPERATION. Executive agrees that, following termination of
Executive's employment for any reason, Executive shall upon reasonable advance
notice, and to the extent it does not interfere with previously scheduled travel
plans and does not unreasonably
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interfere with other business activities or employment obligations, assist and
cooperate with the Company with regard to any matter or project in which
Executive was involved during Executive's employment, including any litigation.
The Company shall compensate Executive for reasonable expenses incurred in
connection with such cooperation and assistance.
(g) ASSIGNMENT OF INVENTIONS. Executive will promptly communicate and
disclose in writing to the Company all inventions and developments including
software, whether patentable or not, as well as patents and patent applications
(hereinafter collectively called "INVENTIONS"), made, conceived, developed, or
purchased by Executive, or under which Executive acquires the right to grant
licenses or to become licensed, alone or jointly with others, which have arisen
or jointly with others, which have arisen or may arise out of Executive's
employment, or relate to any matters pertaining to, or useful in connection
therewith, the business or affairs of the Company or any of its subsidiaries.
Included herein as if developed during the employment period is any specialized
equipment and software developed for use in the business of the Company. All of
Executive's right, title and interest in, to, and under all such Inventions,
licenses, and right to grant licenses shall be the sole property of the Company.
Any such Inventions disclosed to anyone by Executive within one (1) year after
the termination of employment for any cause whatsoever shall be deemed to have
been made or conceived by Executive during the Term. As to all such Inventions,
Executive will, upon request of the Company execute all documents which the
Company deems necessary or proper to enable it to establish title to such
Inventions or other rights, and to enable it to file and prosecute applications
for letters patent of the United States and any foreign country; and do all
things (including the giving of evidence in suits and other proceedings) which
the Company deems necessary or proper to obtain, maintain, or assert patents for
any and all such Inventions or to assert its rights in any Inventions not
patented.
(h) EQUITABLE RELIEF AND OTHER REMEDIES. The parties acknowledge and
agree that the other party's remedies at law for a breach or threatened breach
of any of the provisions of this Section 12 would be inadequate and, in
recognition of this fact, the parties agree that, in the event of such a breach
or threatened breach, in addition to any remedies at law, the other party,
without posting any bond, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
(i) REFORMATION. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 12 is excessive
in duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
(j) SURVIVAL OF PROVISIONS. The obligations of Executive set forth in
this Section 12 shall survive the termination of Executive's employment by the
Company and the termination or expiration of this Agreement and shall be fully
enforceable thereafter.
13. NO ASSIGNMENTS.
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(a) This Agreement is personal to each of the parties hereto. Except
as provided in Section 13(b) below, no party may assign or delegate any rights
or obligations hereunder without first obtaining the written consent of the
other party hereto.
(b) The Company shall assign this Agreement to any successor to all or
substantially all of the business or assets of the Company provided that the
Company shall require such successor to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place and shall
deliver a copy of such assignment to Executive.
14. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given (a) on the date of delivery if delivered by hand,
(b) on the first business day following the date of deposit if delivered by
guaranteed overnight delivery service, or (d) on the fourth business day
following the date delivered or mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to Executive:
Xxxxx Xxxxxxx
0 Xxxxx Xxxxx
Xxxxxx, XX 00000
If to the Company:
Xxxxxx CDT Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
15. SECTION HEADINGS; INCONSISTENCY. The section headings used in this
Agreement are included solely for convenience and shall not affect, or be used
in connection with, the interpretation of this Agreement. In the event of any
inconsistency between this Agreement and any other agreement (including but not
limited to any option, long-term incentive or other equity award agreement),
plan, program, policy or practice of the Company, the terms of this Agreement
shall control.
16. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity of unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
12
17. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement, other than injunctive relief under Section 12(h) hereof or
damages for breach of Section 12, shall be settled exclusively by arbitration,
conducted before a single arbitrator in St. Louis, Missouri, administered by the
American Arbitration Association ("AAA") in accordance with its Commercial
Arbitration Rules then in effect. The single arbitrator shall be selected by the
mutual agreement of the Company and Executive, unless the parties are unable to
agree to an arbitrator, in which case, the arbitrator will be selected under the
procedures of the AAA. The arbitrator will have the authority to permit
discovery and to follow the procedures that Executive or she determines to be
appropriate. The arbitrator will have no power to award consequential (including
lost profits), punitive or exemplary damages. The decision of the arbitrator
will be final and binding upon the parties hereto. Judgment may be entered on
the arbitrator's award in any court having jurisdiction. Each party shall bear
its own legal fees and costs and equally divide the forum fees and cost of the
arbitrator.
18. INDEMNIFICATION; LIABILITY INSURANCE. The Company and Executive shall
enter into the Company's standard form of indemnification agreement governing
his conduct as an officer and director of the Company.
19. AMENDMENTS; WAIVER. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Executive and such officer or director as may be
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
20. ENTIRE AGREEMENT; MISCELLANEOUS. This Agreement together with all
exhibits hereto sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Delaware without regard to its
conflicts of law principles. The descriptive headings in this Agreement are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement. The use of the word
"including" in this Agreement shall be by way of example rather than by
limitation and of the word "or" shall be inclusive and not exclusive.
21. CODE SECTION 409A. It is intended that any amounts payable under this
Agreement and the Company's and Executive's exercise of authority or discretion
hereunder shall comply with the provisions of Section 409A of the Code and the
treasury regulations relating thereto so as not to subject Executive to the
payment of interest and tax penalty which may be imposed under Section 409A. In
furtherance of this interest, anything to the contrary herein notwithstanding,
no amounts shall be payable to Executive before such time as such payment fully
complies with the provisions of Section 409A and, to the extent that any
regulations or other guidance issued under Section 409A after the date of this
Agreement would result in Executive being subject to payment of interest and tax
penalty under Section 409A, the
13
parties agree to amend this Agreement in order to bring this Agreement into
compliance with Section 409A.
22. FULL SETTLEMENT. Except as set forth in this Agreement, the Company's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any circumstances,
including without limitation, set-off, counterclaim, recoupment, defense or
other claim, right or action which the Company may have against Executive or
others, except to the extent any amounts are due the Company or its subsidiaries
or affiliates pursuant to a judgment against Executive. In no event shall
Executive be obliged to seek other employment or take any other action by way of
mitigation of the amounts payable to Executive under any of the provisions of
this Agreement, nor shall the amount of any payment hereunder be reduced by any
compensation earned by Executive as a result of employment by another employer,
except as set forth in this Agreement.
23. WITHHOLDING. The Company may withhold from any and all amounts payable
under this Agreement such federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
24. AGREEMENT OF THE PARTIES. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto. Neither Executive nor the Company shall be entitled to any presumption
in connection with any determination made hereunder in connection with any
arbitration, judicial or administrative proceeding relating to or arising under
this Agreement.
25. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instruments.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
XXXXXX CDT INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
EXHIBIT A
GENERAL RELEASE OF ALL CLAIMS
1. For and in consideration of the promises made in the Executive
Employment Agreement (defined below), the adequacy of which is hereby
acknowledged, the undersigned ("EXECUTIVE"), for himself, his heirs,
administrators, legal representatives, executors, successors, assigns, and all
other persons claiming through Executive, if any (collectively, "RELEASERS"),
does hereby release, waive, and forever discharge Belden CDT Inc. ("COMPANY"),
the Company's subsidiaries, parents, affiliates, related organizations,
employees, officers, directors, attorneys, successors, and assigns
(collectively, the "RELEASEES") from, and does fully waive any obligations of
Releasees to Releasers for, any and all liability, actions, charges, causes of
action, demands, damages, or claims for relief, remuneration, sums of money,
accounts or expenses (including attorneys' fees and costs) of any kind
whatsoever, whether known or unknown or contingent or absolute, which heretofore
has been or which hereafter may be suffered or sustained, directly or
indirectly, by Releasers in consequence of, arising out of, or in any way
relating to Executive's employment with the Company or any of its affiliates or
the termination of Executive's employment. The foregoing release and discharge,
waiver and covenant not to xxx includes, but is not limited to, all claims and
any obligations or causes of action arising from such claims, under common law
including wrongful or retaliatory discharge, breach of contract (including but
not limited to any claims under the Employment Agreement between the Company and
Executive, dated as of July 16, 2006, [as amended] (the "EMPLOYMENT AGREEMENT"))
and any action arising in tort including libel, slander, defamation or
intentional infliction of emotional distress, and claims under any federal,
state or local statute including Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1866 and 1871 (42 U.S.C. Section 1981), the National Labor
Relations Act, the Age Discrimination in Employment Act (ADEA), the Fair Labor
Standards Act, the Americans with Disabilities Act of 1990, the Rehabilitation
Act of 1973, or the discrimination or employment laws of any state or
municipality, or any claims under any express or implied contract which
Releasers may claim existed with Releasees. This release and waiver does not
apply to any claims or rights that may arise after the date Executive signs this
General Release. The foregoing release does not apply to any claims of
indemnification under the Employment Agreement or a separate indemnification
agreement with the Company or rights of coverage under directors and officers
liability insurance.
2. Excluded from this release and waiver are any claims which cannot be
waived by law, including but not limited to the right to participate in an
investigation conducted by certain government agencies. Executive does, however,
waive Executive's right to any monetary recovery should any agency (such as the
Equal Employment Opportunity Commission) pursue any claims on Executive's
behalf. Executive represents and warrants that Executive has not filed any
complaint, charge, or lawsuit against the Releasees with any government agency
or any court.
3. Executive agrees never to xxx Releasees in any forum for any claim
covered by the above waiver and release language, except that Executive may
bring a claim under the ADEA to challenge this General Release or as otherwise
provided in this General Release. If
Executive violates this General Release by suing Releasees, other than under the
ADEA or as otherwise set forth in Section 1 hereof, Executive shall be liable to
the Company for its reasonable attorneys' fees and other litigation costs
incurred in defending against such a suit. Nothing in this General Release is
intended to reflect any party's belief that Executive's waiver of claims under
ADEA is invalid or unenforceable, it being the interest of the parties that such
claims are waived.
4. Executive acknowledges, agrees and affirms that he is subject to certain
post-employment covenants pursuant to Section 12 of the Employment Agreement,
which covenants survive the termination of his employment and the execution of
this General Release.
5. Executive acknowledges and recites that:
(a) Executive has executed this General Release knowingly and
voluntarily;
(b) Executive has read and understands this General Release in its
entirety;
(c) Executive has been advised and directed orally and in writing (and
this subparagraph (c) constitutes such written direction) to seek legal counsel
and any other advice he wishes with respect to the terms of this General Release
before executing it;
(d) Executive's execution of this General Release has not been coerced
by any employee or agent of the Company; and
(e) Executive has been offered twenty-one (21) calendar days after
receipt of this General Release to consider its terms before executing it.
6. This General Release shall be governed by the internal laws (and not the
choice of laws) of the State of Delaware, except for the application of
pre-emptive Federal law.
7. Executive shall have seven (7) days from the date hereof to revoke this
General Release by providing written notice of the revocation to the Company, as
provided in Section 14 of the Employment Agreement, upon which revocation this
General Release shall be unenforceable and null and void and in the absence of
such revocation this General Release shall be binding and irrevocable by
Executive.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS.
Date: ___________________, 20__ EXECUTIVE:
----------------------------------------
Xxxxx Xxxxxxx
