SEVERANCE AND RESTRICTIVE COVENANT AGREEMENT
Exhibit 10.2
THIS SEVERANCE AND RESTRICTIVE COVENANT AGREEMENT (this “Agreement”) is dated as of
May 7, 2009 (the “Effective Date”), between XXXXXXX CABLE, INC., a Delaware corporation
(the “Company”) and Xxxxxxx X. XxXxxxxxxx (“Executive”).
Section 1. TERM OF AGREEMENT
The term of this Agreement shall commence on and as of the Effective Date and continue until
Executive’s employment has terminated and the obligations of the parties hereunder have terminated
or expired or have been satisfied in accordance with their terms.
Section 2. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings set forth in this
Section:
2.1. “Board” means the Board of Directors of the Company.
2.2. “Cause” means:
(a) Executive’s gross neglect or willful failure to perform his duties and responsibilities
with the Company in all material respects or to substantially comply with a specific and lawful
directive of the Company’s Chief Executive Officer or any other officer of the Company to whom
Executive directly reports or the Board, in each case after a written demand for substantial
performance or substantial compliance is delivered to Executive by or on behalf of the Company’s
Chief Executive Officer or the Board, which demand specifically identifies the manner in which the
Company’s Board of Directors believes that Executive has not so performed his duties and which
demand is not met within thirty (30) days of its delivery to Executive;
(b) any act of fraud or embezzlement by Executive in connection with the Company or its
affiliates;
(c) a willful and material breach of this Agreement by Executive which Executive fails to cure
within thirty (30) days of Executive’s receipt of written notice of such breach; or
(d) Executive’s conviction or entering into a plea of nolo contendere to (A) a crime involving
moral turpitude or (B) any other crime materially impairing or materially hindering Executive’s
ability to perform his duties for the Company.
2.3. “Change in Control” means any of the following events:
(a) any person or other entity (other than any of the Company’s subsidiaries or any employee
benefit plan sponsored by the Company or any of its subsidiaries) including any person as defined
in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
becomes the beneficial owner, as defined in Rule 13d-3 under
the Exchange Act, directly or indirectly, of more than fifty percent (50%) of the total
combined voting power of all classes of capital stock of the Company normally entitled to vote for
the election of directors of the Company (the “Voting Stock”);
(b) the stockholders of the Company approve the sale of all or substantially all of the
property or assets of the Company and such sale occurs;
(c) the stockholders of the Company approve a consolidation or merger of the Company with
another corporation (other than with any of the Company’s subsidiaries), the consummation of which
would result in the shareholders of the Company immediately before the occurrence of the
consolidation or merger owning, in the aggregate, less than 60% of the Voting Stock of the
surviving entity, and such consolidation or merger occurs;
(d) a change in the Company’s Board of Directors occurs with the result that the members of
the Board immediately prior to such change no longer constitute a majority of such Board of
Directors; or
(e) any other change of ownership or effective control (as defined in Section 280G(b)(2) of
the Internal Revenue Code (the “Code”)).
2.4. “Code” means the Internal Revenue Code of 1986, as amended.
2.5. “Date of Termination” means: (i) if Executive’s employment terminates by virtue
of Executive’s death, the date of death and (ii) in all other cases, the date as of which a
termination of Executive’s employment becomes effective in accordance with the provisions of
Section 3.1(d).
2.6. “Disability” means any physical or mental illness or infirmity of Executive
(expressly excluding habitual use of alcohol or drugs) that causes Executive to be substantially
unable to perform Executive’s duties with the Company (i) for any period of one hundred twenty
(120) consecutive days, (ii) for two hundred seventy (270) days, whether or not consecutive, in
any period of three hundred sixty five (365) days, despite provision by the Company of reasonable
accommodations as required by law, or (iii) at such earlier time as Executive submits or the
Company receives satisfactory medical evidence that Executive has a physical or mental disability
or infirmity which will likely prevent him from returning to the performance of Executive’s work
duties for four (4) months or longer. In the event of any dispute regarding the determination of
the Employee’s disability, such determination shall be made by a physician selected by the
Company, at the Company’s sole expense, in consultation with the Employee’s primary treating
physician; provided, however, that the Employee’s Disability shall be conclusively presumed if
such determination is made by an insurer providing disability insurance coverage to the Employee
or the Company in respect of the Employee.
2.7. “Good Reason” means the occurrence, without Executive’s express prior written
consent, of any of the following:
(a) a material diminution in Executive’s authority, duties, or responsibilities, other than a
reduction attributable to Executive’s continued failure to
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substantially perform Executive’s duties with the Company or to accommodate Executive’s
physical or mental illness or infirmity;
(b) a material diminution in Executive’s base salary, except with respect to across-the-board
salary reductions generally implemented for certain levels of management employees of the Company;
or
(c) a change in location of Executive’s office within the two-year period on and after a
Change in Control, that is fifty (50) miles or more from the office where Executive was located as
of the Effective Date;
but only if (i) Executive delivers a written notice to the Company within thirty (30) days of the
initial existence of such occurrence, which notice specifically identifies the occurrence and
demands that it be remedied and (ii) if such occurrence is capable of being remedied, the Company
fails to remedy the same within thirty (30) days after receiving such written notice or, if the
same is not capable of being remedied within such period of time, the Company fails to commence
diligently to seek to remedy the same within such period and thereafter to continue to seek to
remedy such failure until remedied.
For the avoidance of doubt, any prospective action that would, if actually taken or implemented,
constitute Good Reason through the application of (a) through (c) above (after the expiration
without cure of the applicable notice and cure period provided for above) shall not in any event be
deemed to have occurred unless and until such action is actually taken or implemented.
2.8. “Separation from Service” means a termination of Executive’s employment that
constitutes a separation from service under Section 409A of the Code.
Section 3. TERMINATION AND COMPENSATION UPON TERMINATION
3.1. In General.
(a) Termination by Company. The Company (acting through the Chief Executive Officer or
the Board) may at any time elect to terminate Executive’s employment by delivery of a notice of
termination to Executive for any reason (including on account of Disability) or no reason, with or
without Cause.
(b) Termination by Executive. Executive may elect to terminate Executive’s employment
by delivery of a notice of termination (i) with Good Reason, in accordance with the provisions of
Section 2.7, or (ii) for any other reason (including on account of Disability) or no reason, at any
time.
(c) Notice of Termination. Any termination of Executive’s employment, whether by the
Company or by Executive, shall be communicated by written notice of termination to the other party
in accordance with the terms of Section 5.5. The notice of termination shall state the specific
termination provision in this Agreement relied upon and set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Executive’s employment under the
provision so indicated and shall state an effective date of termination that complies with the
requirements of subsection (d).
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(d) Effective Date of Termination. Unless otherwise agreed upon in writing by the
Company and Executive:
(i) the effective date of termination of Executive’s employment in the case of a termination
of Executive’s employment by the Company for any or no reason shall not be more than ninety (90)
days after the date the notice of termination is given by the Company;
(ii) the effective date of termination in the case of a termination of Executive’s employment
by Executive for any reason shall not be less than thirty (30) nor more than thirty-five (35) days
after the date the notice of termination is given by Executive.
(e) All payments made to or in respect of Executive pursuant to this Section 3 shall be made
in a cash lump sum within thirty (30) days following the Date of Termination, except where this
Agreement (or the plan pursuant to which such payment is to be made) provides otherwise. No amounts
that are “deferred compensation” within the meaning of Section 409A of the Code and that are
payable under this Agreement as a result of Executive’s termination of employment shall be payable
to Executive unless Executive’s termination of employment also constitutes a Separation from
Service.
3.2. Death, Disability, Termination for Cause, or Resignation without Good Reason.
Executive’s employment shall be terminated automatically on the date of Executive’s death or
Disability. Upon such a termination of employment, or upon a termination of employment by the
Company for Cause, or upon a termination of employment by Executive without Good Reason, the
Company shall pay to Executive (or, in the event of Executive’s death, to Executive’s beneficiary
or estate), when the same would otherwise have been due, the base salary and any bonus then
payable through the Date of Termination and shall have no further obligations under this
Agreement.
3.3. Termination Without Cause or With Good Reason. If Executive’s employment is
terminated by the Company without Cause or by Executive for Good Reason, the Company shall pay to
Executive:
(a) when the same would otherwise have become due and payable, the base salary and any bonus
then payable through the Date of Termination (without regard to any reduction therein constituting
Good Reason within the meaning of Section 2.7(b)), plus
(b) an amount of severance pay equal to one and one-half (1.50) times the amount of
Executive’s annual base salary as in effect on the Date of Termination (without regard to any
reduction therein constituting Good Reason within the meaning of Section 2.7(b)), which amount
shall be paid in twenty-four (24) consecutive equal semi-monthly installments, commencing not later
than the first day of second calendar month following the Date of Termination and continuing
thereafter until paid in full. In the event that any payments due under this subsection (b)
constitute “deferred compensation” within the meaning of Section 409A of the Code, Executive’s
right to receive a series of installment payments shall be treated as a right to a series of
separate payments.
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In addition, if Executive’s employment is terminated by the Company without Cause or by Executive
for Good Reason all of Executive’s options and restricted stock that vest based on the passage of
time shall vest immediately (to the extent not previously vested) without regard to whether or
not any of the conditions specified therein have been achieved.
3.4. Cost of COBRA Continuation Coverage. If and to the extent that Executive,
following a termination of Executive’s employment described in Section 3.3, properly and timely
elects (on behalf of Executive and Executive’s qualified beneficiaries) continuation coverage
under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”)
with respect to the Company’s group health plan, Executive shall pay the then-current portion of
the cost of such coverage that would be payable by the Company’s similarly situated active
employees and the Company shall pay the balance of such then-current costs as long as and for the
period during which the Company remains obligated for continuing payments under Section 3.3(b)
(without regard to any acceleration by the Company of such payments). The Company shall be
authorized to deduct from the installments to be paid under Section 3.3 Executive’s then-current
share of the cost of such coverage. The Company’s subsidy of such group health plan coverage
shall terminate upon the earlier of (1) the date of termination of COBRA continuation coverage
and (2) the payment in full by the Company of its obligations under Section 3.3(b) (without
regard to any acceleration by the Company of such payments), whereupon Executive shall be fully
responsible for the cost of continuing coverage and benefits, if any.
3.5. General Release Agreement. The obligations of the Company to make the payments
and provide the benefits described in Sections 3.3 and 3.4 are expressly conditioned upon
Executive’s signing and delivering to the Company, not later than thirty (30) days after the Date
of Termination (or such longer period, to the extent required by law), and thereafter not
revoking, a valid general release agreement in substantially the form attached hereto as
Attachment A. Any breach of Executive’s nondisclosure, nonsolicitation, or noncompetition
obligations to the Company that has or is reasonably likely to have a material and adverse effect
on the Company shall, in addition to all other remedies available to Company, result in the
immediate release of the Company from any obligation it would otherwise have to make further
payments or provide further benefits under this Agreement. Executive expressly acknowledges that
the Company is prepared to vigorously enforce these promises and that violation of Executive’s
obligations could result in an award of damages or other legal remedies against Executive and
Executive’s subsequent employers.
3.6. Limitation.
(a) Notwithstanding the foregoing:
(i) In the event that it shall be determined that any payment or distribution from the
Company, any affiliate, or trusts established by the Company or by any affiliate to or for the
benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, and with a “payment” including, without limitation, the vesting of
an option or other non-cash benefit or property) (a “Payment”) would be nondeductible by the
Company for Federal income tax purposes because of Section 280G of the Code, or any successor
provision, then the aggregate present value of amounts payable or
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distributable to or for the benefit of Executive pursuant to this Agreement (“Agreement
Payments”) shall be reduced (but not below zero) to the Reduced Amount. For purposes of this
paragraph, the “Reduced Amount” shall be an amount expressed in present value which maximizes the
aggregate present value of Agreement Payments without causing any Payment to be nondeductible
because of said Section 280G of the Code. The determination to be made hereunder shall be made
within twenty (20) days after the date of termination by the accounting firm that is then acting as
auditor for the Company (the “Accounting Firm”), which shall provide detailed calculations thereof
to the Company and to Executive, provided, however, that Executive shall elect which and how much
of the Agreement Payments shall be reduced consistent with such calculations. The determination to
be made by the Accounting Firm shall be binding upon the Company and Executive unless each of the
following occurs: (i) within fifteen (15) days of the date of such determination, either party
gives to the other party a written legal opinion from a nationally recognized law firm stating that
there is a substantial possibility that the Internal Revenue Service will reach a conclusion
different from that reached by the Accounting Firm; (ii) either party, within fifteen (15) days of
the date of such letter, seeks a private letter ruling from the Internal Revenue Service; and (iii)
the Internal Revenue Service issues a private letter ruling reaching a conclusion different from
that reached by the Accounting Firm. A private letter ruling by the Internal Revenue Service issued
under these circumstances shall be binding upon the Company and Executive. Present value, for
purposes of the calculations under this Section 3.6, shall be determined in accordance with Section
280G(d)(4) of the Code. Notwithstanding anything in this Section 3.6 to the contrary, to the
extent any of the payments or benefits provided under the Agreement are reduced in accordance with
the provisions of this Section, payments and benefits that do not constitute “deferred
compensation” within the meaning of Section 409A of the Code shall be reduced first.
(ii) As a result of uncertainty in the application of Section 280G of the Code at the time of
any initial determination by the Accounting Firm hereunder, it is possible that Agreement Payments
will have been paid or distributed by the Company which should not be so paid or distributed
(“Overpayment”) or that additional Agreement Payments which were not paid or distributed by the
Company could have been so paid or distributed (“Underpayment”), in each case, consistent with the
calculation of the Reduced Amount hereunder. In the event that the Accounting Firm determines that
an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan to
Executive which Executive shall repay to the Company promptly upon receiving notice of such
Overpayment together with interest at the applicable federal rate provided for in Section
7872(f)(2) of the Code; provided, however, that no amount shall be payable by Executive to the
Company (or if paid by Executive to the Company shall be returned to Executive) if and to the
extent such payment would not reduce the amount which is nondeductible under Section 280(G) of the
Code or which is subject to taxation under section 4999 of the Code. In the event that the
Accounting Firm determines that an Underpayment has occurred, any such Underpayment shall be
promptly paid by the Company to or for the benefit of Executive together with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the Code.
(b) To the extent that any cash payments due under Section 3.3 or Section 3.4: (i) constitute
“deferred compensation” subject to the requirements of Section 409A of the Code, (ii) are payable
to an Executive who is a “specified employee” (as defined in Section 409A) as a result of
Executive’s Separation from Service, and (iii) would be payable
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during the six (6) month period following Executive’s Separation from Service, such payments
shall be suspended and accumulated by the Company and paid out to Executive on the first business
day following the date that is six (6) months after Executive’s Separation from Service. In
determining whether any cash payments due under Section 3.3 or Section 3.4 are deferred
compensation within the meaning of Section 409A, the parties agree, to the greatest extent possible
under the Treasury Regulations promulgated under Section 409A, to make use of any exemptions
available under Section 409A, including the short-term deferral exemption, the separation pay
exemption, and the limited payment exemption.
3.7. Termination Obligations.
(a) Executive hereby acknowledges and agrees that all Company Property and Materials furnished
or made available to or acquired by Executive in the course of or incident to Executive’s
employment, belong to the Company and shall be promptly returned to the Company upon termination of
Executive’s employment for whatever reason. “Company Property and Materials” for such
purpose includes (i) all electronic devices owned, leased, or made available by the Company for
Executive’s use, including personal computers, fax machines, cellular telephones, pagers, and tape
recorders, and (ii) all books, manuals, records, reports, notes, contracts, lists, blueprints, maps
and other documents, or materials, or copies thereof (including computer files) belonging to, and
all other proprietary information relating to the business of, the Company. Following termination,
Executive will not retain any written or other tangible material containing any proprietary
information of the Company and, upon request, will confirm Executive’s compliance with this
subsection in writing.
(b) Executive’s obligations under this Section 3.7 and Section 4 (including but not limited to
the confidentiality provisions set forth in Section 4.1) shall survive termination of Executive’s
employment and the expiration of this Agreement.
(c) Upon termination of Executive’s employment, Executive will be deemed to have resigned from
all offices and directorships then held with the Company or any of its affiliates.
3.8. No Duty to Mitigate. No amount due to Executive under this Agreement by virtue
of the termination of Executive’s employment (other than payments to be provided in respect of
health benefits to the extent that Executive is entitled to similar benefits by virtue of new
employment) shall be reduced by or on account of any compensation received by Executive as the
result of employment by another employer.
Section 4. RESTRICTIVE COVENANTS
4.1. Confidentiality. In the performance of Executive’s duties for the Company,
Executive shall abide by and be bound by the Company’s Code of Business Conduct and Ethics,
including the confidentiality and nonsolicitation restrictions set forth therein. In addition and
not in lieu or in substitution therefor, Executive shall not, during Executive’s employment or at
any time thereafter, directly or indirectly, disclose or make available to any person for any
reason or purpose whatsoever, any Confidential Information (as defined below). Executive agrees
that, upon termination of Executive’s employment with
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the Company, all Confidential Information in Executive’s possession that is in written or
other tangible form (together with all copies or duplicates thereof, including computer files),
whether or not otherwise included among the Personal Property required to be returned pursuant to
Section 3.7(a), shall be returned to the Company and shall not be retained by Executive or
furnished or disclosed to any third party in any form except as provided herein; provided,
however, that Executive shall not be obligated to treat as confidential any information that (i)
was publicly known at the time of disclosure to Executive, (ii) becomes publicly known or
available thereafter other than by virtue of a violation of this Agreement or any other duty owed
to the Company by Executive, or (iii) is lawfully disclosed to Executive by a third party. As
used in this Agreement the term “Confidential Information” means otherwise valuable and unique
nonpublic information disclosed to Executive or known by Executive as a consequence of or through
Executive’s relationship with the Company, including information about the customers, vendors,
employees, consultants, business methods, public relations methods, organization, procedures,
business plans, or finances, of the Company or its affiliates, whether or not such information
constitutes a “trade secret” under applicable law.
4.2. Noncompetition.
(a) Competitive Activity. In addition to the restrictions contained in the Company’s
Code of Business Conduct and Ethics, Executive agrees that Executive shall not, without the prior
written consent of the Company (as may be communicated through the Company’s Chief Executive
Officer or the Board):
(i) During the period Executive is employed by the Company (the “Employment Period”)
and during the Restriction Period (as defined in subsection (c)), directly or indirectly, engage or
participate in (as an owner, partner, stockholder, employee, director, officer, agent, consultant
or otherwise), with or without compensation, any business enterprise that is directly or indirectly
engaged in the business of manufacturing wire and cable in the United States and in any other
countries or territories where the Company sells its products (x) during the Employment Period, as
it is being conducted while Executive is employed by the Company or (y) during the Restriction
Period, as it was being conducted at the time of the termination of Executive’s employment (each a
“Competitive Business”);
(ii) During the Restriction Period, directly or indirectly, solicit or attempt to persuade any
person who was, at any time within the two (2) year period before Executive’s Date of Termination,
an employee or independent contractor of the Company, to terminate his, her, or its relationship
with the Company; or
(iii) During the Restriction Period, directly or indirectly, employ, hire, or retain any
person who was an employee of the Company at any time within the one (1) year period before
Executive’s Date of Termination.
For the avoidance of doubt and without limitation, subsection (i) above is intended, among other
things, to prohibit, during the Employment Period and Restriction Period, the solicitation by
Executive of any customer, client, or vendor of the Company for the benefit of or in furtherance of
a Competitive Business and the engagement or participation of Executive by or with any
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business that solicits or engages in business with any customer, client, or vendor of the Company
in furtherance of a Competitive Business.
(b) Notwithstanding the foregoing, Executive may own up to a five percent (5%) interest in a
publicly traded corporation or other person engaged in a Competitive Business.
(c) For purposes hereof, “Restriction Period” means the period beginning upon the Date
of Termination and ending on the first anniversary thereof.
4.3. Remedies for Breach. Executive acknowledges that the provisions of Sections 4.1
and 4.2 are reasonable and necessary for the protection of the Company and that the Company may
be irrevocably damaged if these provisions are not specifically enforced. Accordingly, Executive
agrees that, in addition to any other legal or equitable relief or remedy available to the
Company, the Company shall be entitled to seek and may obtain an appropriate injunction or other
equitable remedy for the purposes of restraining Executive from any actual or threatened breach
of or otherwise enforcing these provisions (and that no bond or security shall be required in
connection therewith), together with an equitable accounting of all earnings, profits, and other
benefits arising from such violation, which rights shall be cumulative.
4.4. Modification. If a court determines that any of the restrictions contained in
Section 4.1 or Section 4.2 is unreasonable in terms of scope, duration, geographic area, or
otherwise, or any provision in Section 4.1 or Section 4.2 is otherwise illegal, invalid, or
unenforceable, then such restriction or provision, as applicable, shall be reformed to the extent
necessary so that the same shall be rendered enforceable to the fullest extent otherwise
permissible under applicable law, and the parties hereto do hereby expressly authorize any such
court to so provide.
Section 5. GENERAL PROVISIONS
5.1. Termination of Prior Agreements. The parties hereby agree that any and all
prior agreements between Executive and the Company with respect to severance payments or benefits
are hereby terminated as of the date hereof, and any and all such agreements shall be of no
further force and effect from and after the date hereof and the parties shall be released from
any further obligations thereunder. The foregoing, however, shall not be deemed to abrogate or
otherwise affect any of Executive’s obligations under the Company’s Code of Business Conduct and
Ethics as heretofore or hereafter in effect or any other restrictive covenant binding upon
Executive.
5.2. Certain Rules of Construction.Number. The definitions contained in Section 2 and elsewhere in this Agreement
shall be equally applicable to both the singular and plural forms.
(b) “Including”; “Or.” The word “including” means and shall be read as “including but
not limited to” and the word “or” means “or” in the nonexclusive sense, i.e., either “and” or “or.”
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(c) Section and Subsection References. Except as otherwise specified herein,
references in this Agreement to Sections, subsections, and paragraphs are references to the
Sections, subsections, and paragraphs of this Agreement.
(d) Headings. The headings of the Sections, subsections, and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to constitute part of this
Agreement or affect the construction hereof.
(e) “Herein.” Words such as “herein,” “hereinafter,” “hereof,”
and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which
such words appear unless the context otherwise requires.
(f) “Person.” Except as may be expressly provided otherwise herein, the word “person”
includes an individual, corporation, general or limited partnership, joint venture, limited
liability company, business trust, firm, association, or other form of business entity.
5.3. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or assets of the Company 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. Failure of the
Company to obtain such assumption and agreement before the effectiveness of any such succession
shall be a breach of this Agreement. Unless expressly provided otherwise, “Company” as used herein
means the Company as defined in this Agreement and any successor to its business or assets as
aforesaid.
(b) This Agreement may not be assigned by Executive but shall inure to the benefit of and be
enforceable by Executive and Executive’s personal or legal representatives, executors,
administrators, heirs, distributees, devisees and legatees. If Executive dies while any amounts
remains payable to Executive hereunder, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to Executive’s devisee, legatee, or other
designee or, if there is no such designee, to Executive’s estate.
5.4. No Contract of Employment. Executive acknowledges that Executive’s employment
with the Company is “at will.” This Agreement does not and is not intended to confer upon
Executive any right of continued or future employment by the Company or any right to compensation
or benefits from the Company except the rights specifically stated herein, and shall not limit
the right of the Company to terminate Executive’s employment at any time with or without Cause.
5.5. Notices. All notices, demands, and other communications required or permitted
by this Agreement shall be in writing and shall be deemed to have been duly given (i) when
personally delivered, (ii) when transmitted by telecopy, electronic, or digital transmission with
receipt confirmed, (iii) one day after delivery to an overnight air courier
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guaranteeing next day delivery, or (iv) upon receipt if sent by certified or registered
mail. In each case, notice shall be addressed as follows:
If to Executive:
|
As set forth below Executive’s signature | |
| to this Agreement | ||
If to the Company:
|
Xxxxxxx Cable, Inc. | |
| 0000 Xxxxxxx Xxxxx | ||
| Xxxxxxxx, Xxxxxxxx 00000 |
||
| Attention: Chief Executive Officer |
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 actual receipt.
5.6. 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 instrument. A counterpart signature page delivered by fax or other electronic means shall be
as effective as the original thereof.
5.7. Governing Law. This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of Illinois (without regard to any provision that would
result in the application of the laws of any other state or jurisdiction).
5.8. Nondisparagement. The Company and Executive agree that neither will knowingly
make any false statement intended or reasonably likely to disparage or defame the other to any
person not a party to this Agreement relating to the employment relationship between the Company
and Executive, the Company’s business, or Executive’s performance.
5.9. ARBITRATION OF DISPUTES.
(a) Any claims (including counterclaims and cross-claims) and disputes between the parties
arising out of or in any way relating to this Agreement or Executive’s employment with the Company
shall (except as permitted by subsection (b)) be resolved by submission to binding arbitration
before a single neutral arbitrator, who shall be a member of the Bar of the State of Illinois, in
accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration
Association (AAA) then in effect. Such arbitration shall be held in Chicago, Illinois.
(b) Notwithstanding subsection (a) or any other provision of this Agreement, either party
shall have the right to apply to a court having appropriate jurisdiction to seek injunctive or
other equitable or nonmonetary relief, on either an interim or permanent basis, in respect of any
claim arising out of or in connection with this Agreement or Executive’s employment with the
Company.
5.10. Attorneys’ Fees. If any legal action, arbitration, or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute, breach, or
default in connection with any of the provisions of this Agreement, the prevailing party (as
determined by the court or arbitrator) shall be entitled to recover reasonable attorneys’ fees
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and other costs incurred in such action, arbitration, or other proceeding, including any
appeal thereof, in addition to any other relief to which such party may be entitled. Any award of
attorneys’ fees or costs to Executive shall not affect the award of any attorneys’ fees or costs
eligible for reimbursement in any other calendar year, and all such reimbursements must be made
on or before the last day of the calendar year following the calendar year in which the expense
was incurred.
5.11. Entire Agreement; Amendments. This Agreement contains the entire agreement and
understanding between the Company and Executive with respect to the subject matter hereof, and no
representations, promises, agreements, or understandings, written or oral, not herein contained
shall be of any force or effect. This Agreement shall not be changed unless in writing and signed
by both Executive and the Company.
5.12. Executive’s Acknowledgment. Executive acknowledges (i) that Executive has had
the opportunity to consult with independent counsel of Executive’s own choice concerning this
Agreement, and (ii) that Executive has read and understands the Agreement, is fully aware of its
legal effect, and has entered into it freely based on Executive’s own judgment.
5.13. Section 409A Compliance. Notwithstanding any provision of this Agreement to
the contrary, the payments provided by this Agreement are intended to be exempt from or comply
with Section 409A of the Code and the interpretive guidance thereunder. The Agreement shall be
construed and interpreted in accordance with such intent.
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IN WITNESS WHEREOF, the parties have executed this Severance and Restrictive Covenant
Agreement as of the date and year first above written.
| XXXXXXX CABLE, INC. |
||||
| By: | /s/ G. Xxxx Xxxxxx | |||
| Its: | President and CEO | |||
| EXECUTIVE: |
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| /s/ Xxxxxxx X. XxXxxxxxxx | ||||
| Name: | Xxxxxxx X. XxXxxxxxxx | |||
| Address: |
||||
| Facsimile: ( ) | ||||
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