EXHIBIT 10.31
SEPARATION AGREEMENT
This SEPARATION AGREEMENT is dated as of November 6, 2001, and is
entered into by and between Classic Communications, Inc., Classic Cable, Inc.
(collectively, the "Company"), and Xxxxxxxxx Xxx Xxxxxxxx ("Employee").
WHEREAS, Employee and the Company are parties to an employment
agreement, dated July 28, 1999 (the "Employment Agreement"); and
WHEREAS, effective November 6, 2001, pursuant to Section 8(b) of the
Employment Agreement, the Company terminated Employee's employment without Good
Cause; and
WHEREAS, pursuant to Section 8(f) of the Employment Agreement, as a
condition to receiving termination benefits, Employee is required to execute
full release of claims; and
WHEREAS, subject to the terms and conditions contained herein, Employee
and the Company have mutually agreed to embody in this Agreement the terms and
conditions applicable to Employee's termination of employment with the Company;
and
WHEREAS, except as expressly provided herein, this Agreement shall
supersede all prior oral and written agreements, arrangements and understandings
relating to the terms and conditions of Employee's termination of employment.
NOW, THEREFORE, the parties hereby agree:
Section 1. Termination Date. Employee's termination from the Company
will be effective as of November 6, 2001 (the "Termination Date").
Section 2. Termination Benefits. In accordance with Section 8(c) of the
Employment Agreement, commencing on the Termination Date (or, if later, the 8th
day following Employee's execution of this Agreement without prior revocation
pursuant to Section 7 hereof), and ending on the first anniversary of the
Termination Date, the Company shall continue to (a) pay Employee her base
salary, as in effect on the Termination Date, payable in accordance with the
Company's prevailing payroll practices, and (b) provide Employee matching 401(k)
contributions consistent with past practice (to the extent permitted by law),
health insurance coverage and other existing benefits, including earned vacation
pay, as in effect on the Termination Date.
Section 3. Full Settlement. Except for the benefits retained by
Employee in Section 4 hereof, the amounts set forth above in Section 2 hereof
shall constitute full settlement and satisfaction with respect to all
obligations and liabilities of the Company, its partners, officers, directors,
trustees, employees, representatives and/or agents to Employee, including,
without limitation, all claims for wages, salary, accrued vacation pay, draws,
incentive pay, bonuses, stock and stock options, commissions, severance pay, any
and all other forms of compensation or benefits, or other costs or sums.
Section 4. Benefit Plans. Except as otherwise specifically provided in
this Agreement or by law or by any employee benefit plan, Employee's
participation in all employee
benefit plans and compensation plans and practices of the Company shall
terminate on the Termination Date, and there shall be no other payments or
benefits payable to Employee by the Company, including, but not limited to, any
other salary, bonus, commissions, fees, benefits, or other payments of any
nature whatsoever. Employee may elect health care continuation coverage for
herself or her covered dependents under the Company's medical plans as required
by COBRA.
Section 5. Taxes. The payments due to Employee under this Agreement
shall be subject to reduction to satisfy all applicable Federal, state and local
withholding tax obligations.
Section 6. Agreement and Waiver of Claims. In accordance with Section
8(f) of the Employment Agreement, and in consideration of the payments,
benefits, and other consideration provided to Employee under this Agreement,
Employee, for herself and her family, heirs, executors, administrators, legal
representatives, and its respective successors and assigns, hereby releases and
forever discharges the Company and all of its subsidiaries, affiliates,
officers, directors, employees, agents, stockholders, representatives, and their
successors and assigns (collectively, "Company Entities"), from all rights,
claims or demands Employee may have, arising at any time on or before the date
hereof, based on her employment with any Company Entity or the termination of
that employment. This includes a release of any and all rights, claims or
demands the Employee may have, whether known or unknown, under the Age
Discrimination in Employment Act ("ADEA"), which prohibits age discrimination in
employment; Title VII of the Civil Rights Act of 1964, which prohibits
discrimination in employment based on race, color, national origin, religion or
sex; the Equal Pay Act, which prohibits paying men and women unequal pay for
equal work; or under any other federal, state or local laws or regulations
regarding employment discrimination or termination of employment. This also
includes a release by Employee of any claims for wrongful discharge under any
statute, rule, regulation or under the common law. However, Employee does not
waive any rights or claims that may arise after the date this Agreement is
executed, or any rights to enforce this Agreement. Employee hereby agrees never
individually or with any person to file, or commence the filing of, any charges,
lawsuits, complaints or proceedings with any governmental agency, or against the
Company, or any Company Entity, with respect to any of the matters released by
Employee pursuant to this (a "Proceeding"); provided, however, Employee shall
not have relinquished his right to commence a Proceeding to challenge whether
Employee knowingly and voluntarily waived her rights under ADEA.
Section 7. Waiting Period and Revocation Period. Employee hereby
acknowledges that the Company has informed her that she has up to twenty-one
(21) days to sign this Agreement and she may knowingly and voluntarily waive
that twenty-one (21) day period by signing this Agreement earlier. Employee also
understands that she shall have seven (7) days following the date on which she
signs this Agreement within which to revoke it by providing a written notice of
her revocation to the Company.
Section 8. Remedies. Employee hereby acknowledges and understands that
if she revokes this Agreement within the seven (7) day revocation period
provided under Section 7 above, the Company may, in addition to any other
remedies it may have, reclaim any amounts paid to Employee under this Agreement
to which Employee would not be otherwise entitled, and/or terminate any payments
to which the Employee would not be otherwise entitled that are subsequently due
hereunder.
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Section 9. Non-Admission. Employee expressly acknowledges that this
Agreement does not constitute an admission by the Company of any violation of
any employment law, regulation, ordinance, or administrative procedure, or any
other federal, state, or local law, common law, regulation or ordinance,
liability for which is expressly denied.
Section 10. Non-Disparagement. Employee agrees that, except as required
by applicable law, or compelled by process of law, at any time following the
date hereof, neither she, nor anyone acting on her behalf, shall hereafter make
any derogatory, disparaging or critical statement about the Company or its
subsidiaries or affiliates, or any of the Company's current officers, directors,
employees, or shareholders or any persons who were officers, directors,
employees, or shareholders of the Company.
Section 11. Confidentiality of Agreement. Employee and the Company
hereby agree to keep the terms of this Agreement confidential. The obligations
of Employee and the Company under this Section 11 shall not apply to disclosures
required by applicable law, regulation or order of a court or governmental
agency, to either parties counsel, or to Employee's immediate family.
Section 12. Restrictive Covenants. No restrictive covenants referred to
in Section 11. of the Employment Agreement shall continue to survive other than
that referenced in Section 11 of this Agreement.
Section 13. Opportunity for Advice. By signing this Agreement, Employee
acknowledges that with the advice of the Company, she has had a reasonable
opportunity to consider advice from her legal counsel. Fully understanding these
terms, Employee is entering into this Agreement knowingly and voluntarily.
Section 14. Acceptance; Effective Date. To accept this Agreement,
Employee shall execute and date this Agreement on the spaces provided and return
a copy to the Company at any time during the twenty-one (21) day period
commencing on the date hereof. This Agreement shall take effect on the eighth
day following Employee's execution of this Agreement unless Employee's written
revocation is delivered to the Company within seven (7) days after such
execution.
Section 15. Entire Agreement. This Agreement represents the entire
agreement of the parties with respect to Employee's employment and termination
thereof. Except as specifically provided herein, this Agreement shall supersede
the Employment Agreement in all respects effective as of the Termination Date.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 16. Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
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Section 17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
/s/ Xxxxxxxxx Xxx Xxxxxxxx
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Xxxxxxxxx Xxx Xxxxxxxx
CLASSIC COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: President
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CLASSIC CABLE, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: President
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