EMPLOYMENT AGREEMENT
Agreement made and entered into this 13th day of May, 1997, by and
between General Cable Corporation, a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, it is proposed that shares of the Company's Common Stock, $.01
par value per share (the "Common Stock"), will be sold by the Company's parent,
Xxxxxxx Netherlands Cable B.V., in a public offering (the "Public Offering");
and
WHEREAS, effective upon consummation of the Public Offering (the
"Effective Date") it is intended that this Agreement become effective;
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Term of Employment.
(a) Commencing on the Effective Date, the Company shall employ the
Executive, and the Executive shall accept employment and shall serve the
Company, in such capacities, with such duties and authority, for such period, at
such level of compensation and with such benefits, and upon such other terms and
subject to such other conditions, as are
hereinafter set forth. The term of the Executive's employment hereunder shall
commence on the Effective Date and, unless previously terminated as provided
herein, shall continue until the third anniversary of the Effective Date (the
"Employment Period"); provided, however, that commencing on the third
anniversary of the Effective Date and each anniversary thereafter, the
Employment Period shall automatically be extended for one additional year unless
not later than one hundred twenty (120) days prior to such anniversary, the
Company or the Executive shall have given written notice to the other not to
extend the Employment Period.
(b) If the consummation of the Public Offering does not occur on or
before October 31, 1997, this Agreement shall terminate.
2. Capacities, Duties and Authority.
(a) Effective on the Effective Date, the Executive shall be elected,
and throughout the Employment Period the Executive shall be entitled to serve
as, Executive Vice President and Chief Operating Officer of the Company, GCC
Corporation, a Delaware corporation and a wholly owned subsidiary of the Company
("GCC"), GK Technologies, Incorporated, a New Jersey corporation ("GK"), General
Cable Industries, Inc., a Delaware corporation
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("Industries"), and such other affiliates of the Company, GCC, GK or Industries
as the Board of Directors of the Company (the "Company's Board") shall request.
The Company, GCC, GK, Industries and such other affiliates are hereinafter
referred to collectively as the "Group". Commencing on the Effective Date, the
Executive shall be elected and serve as a member of the Company's Board.
(b) In his capacity as Executive Vice President and Chief Operating
Officer of each of the members of the Group, the Executive shall have such
authority, perform such duties, discharge such responsibilities and render such
services as are customary to and consistent with such positions, subject to the
authority and direction of the relevant board of directors.
(c) The Executive shall render his services diligently, faithfully and
to the best of his ability, devoting thereto his entire business time, energy
and skills on an exclusive basis and, without the prior written consent of the
Company's Board, the Executive shall not render services to or for the account
of any person, firm or corporation other than a member of the Group.
3. Compensation.
(a) The Executive shall be paid a base salary during the Employment
Period at the annual rate of Three
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Hundred Thousand Dollars ($300,000), payable in accordance with the regular
payroll practices of the Company. The Compensation Committee of the Company's
Board (the "Compensation Committee") shall annually review the Executive's
performance and determine, in its sole discretion, whether or not to increase
the Executive's base salary and, if so, the amount of such increase. The
Executive's base salary as in effect from time to time is hereinafter referred
to as the "Base Salary."
(b) The Company has adopted, and the stockholder of the Company has
approved the adoption of, the General Cable Corporation 1997 Incentive Bonus
Program annexed hereto as Annex I (the "1997 Bonus Plan"). As soon as
practicable after the Effective Date, the Company agrees to recommend to the
Company's Board that the Executive be awarded the opportunity to earn, in
respect of the fiscal year ending December 31, 1997, a bonus (the "1997
Incentive Bonus") of up to one hundred twenty percent (120%) of his Base Salary
targeted upon the attainment of the performance goals specified therein. The
Compensation Committee shall establish a performance-based annual bonus program
for senior executives of the Company including the Executive for fiscal years
after 1997 (a "Future Bonus Plan") and award the Executive an annual bonus
opportunity thereunder which
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is not less favorable than the opportunity provided pursuant to the 1997
Incentive Bonus without restricting the discretion of the Compensation Committee
to set targets and criteria for such incentive compensation.
4. Employee Benefit Programs.
(a) During the Employment Period, the Executive shall be entitled to
participate in and shall have the benefit of all vacation, group life,
disability, hospital, surgical and major medical insurance plans and programs
and other employee benefit plans and programs as generally are made available to
executive personnel of the Group, as such benefit plans or programs may be
amended in the sole discretion of the Group members and with the concurrence of
the Compensation Committee, from time to time.
(b) During the Employment Period, the Executive shall receive or
participate in any fringe benefits provided to the member of the Group's
senior-level executives in accordance with the terms and conditions of such
arrangements as may be in effect from time to time.
5. Stock Option and Restricted Stock
(a) The Company has adopted, and the stockholder of the Company has
approved the adoption of, the General Cable Corporation Long-Term Stock
Incentive Plan (the "Stock Incentive Plan") annexed hereto as Annex II. As soon
as
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practicable after the Effective Date, the Company agrees to recommend to the
Company's Board that the Executive be granted under the Stock Incentive Plan a
ten-year non-qualified option to purchase 86,000 shares of Common Stock at the
initial Public Offering price of the Common Stock (the "Option"). The exercise
price of the Option shall be equal to the initial Public Offering price. The
Option shall vest and (subject to acceleration as provided herein or in the
Change-in-Control Agreement referred to below) be fully exercisable on the third
anniversary of the Effective Date in accordance with the terms of the Stock
Incentive Plan.
(b) As soon as practicable after the Effective Date, the Company shall
recommend that the Executive be awarded under the Stock Incentive Plan the
number of shares of restricted Common Stock having a value of Five Hundred
Thousand Dollars ($500,000) at the initial Public Offering price of the Common
Stock (the "Restricted Stock"). The restrictions on the Restricted Stock shall
lapse (subject to acceleration as provided herein or in the Change-in-Control
Agreement) on the third anniversary of the Effective Date in accordance with the
terms of the Stock Incentive Plan.
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6. Termination of Employment.
(a) The Executive's employment hereunder shall terminate:
(i) upon the death of the Executive;
(ii) upon the Disability of the Executive, which for the purposes
of this Agreement shall mean his inability because of physical or
mental illness or incapacity, whether partial or total, with or without
accommodation, to perform his duties under this Agreement, as
determined by the Company's Board, after review of such reports of
physicians of recognized standing in the medical community in the
Cincinnati, Ohio metropolitan area as the Company's Board (or a special
committee thereof) selects, for a continuous period of at least four
(4) months or for an aggregate of one hundred fifty (150) days within
any twelve (12) month period); or
(iii) at the option of the Company, exercisable by or upon the
authority of the Company's Board and effective immediately upon the
giving by the Company to the Executive of written notice of such
exercise, for "Cause", which, for purposes of this Agreement, shall
mean:
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(A) the gross neglect or willful failure by the Executive to perform
his duties and responsibilities in all material respects as set
forth in Paragraph 2 hereof, after a written demand for substantial
performance is delivered to the Executive by the Company's Board,
which demand specifically identifies the manner in which the
Company's Board believes that the Executive has not so performed
his duties;
(B) any act of fraud by the Executive, whether relating to the Group or
otherwise;
(C) the conviction or entry into a plea of nolo contendere by the
Executive with respect to any felony or misdemeanor (other than a
traffic offense which does not result in imprisonment);
(D) the commission by the Executive of any willful or intentional act
(including any violation of law) which materially injures the
reputation or materially adversely affects the business or business
relationships of the Group; or
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(E) any willful failure or willful breach (not covered by any of
clauses (A) through (D) above) of any of the material obligations
of this Agreement, if such breach is not cured within 10 days after
written notice thereof to the Executive by the Company's Board;
For purposes of clauses (A), (D) and (E) of this definition, no act, or failure
to act, on the Executive's part shall be deemed "willful" unless done, or
omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive's act, or failure to act, was in the best interest of
the Group. Notwithstanding the foregoing, the Executive shall not be terminated
for Cause unless and until there shall have been delivered to the Executive a
certified copy of a resolution, duly adopted by the affirmative vote of not less
than three-quarters of the entire membership of the Company's Board, at a
meeting of the Company's Board called and held for the purpose (after reasonable
notice to the Executive, and an opportunity for him, together with his counsel,
to be heard before the Company's Board), finding that the Executive's conduct
met the definition of "Cause" set forth herein, specifying the particulars
thereof in detail.
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(iv) at the option of the Company, for a reason other than
Disability or Cause, effective immediately upon the giving of written
notice of such exercise;
(v) at the option of the Executive, effective ten (10) business
days after the giving of written notice of such exercise by the
Executive to the Company (or such shorter period as the Company's Board
may elect by giving written notice to the Executive), in the event that
the Executive has Good Reason, which for purposes of this Agreement
shall mean the occurrence at any time of any of the following without
the Executive's prior written consent:
(A) removal from any of the positions (other than as a member of the
Company's Board) held by the Executive with respect to the Company
or any of its significant subsidiaries (as defined in Regulation
S-X under the Securities Exchange Act of 1934);
(B) the assignment of duties or responsibilities materially
inconsistent with those customarily associated with the positions
held by the Executive or a diminution of the
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Executive's position, authority, duties or responsibilities (other
than an isolated action that is not taken in bad faith and is
remedied by the Company promptly after receipt of written notice
thereof from the Executive);
(C) except as provided in Paragraph 6(d), a reduction in the
Executive's Base Salary payable pursuant to Paragraph 3(a) hereof
or a material reduction in any other material benefit provided the
Executive hereunder; or
(D) notice by the Company, as set forth in Paragraph 1(a) hereof, not
to extend the Employment Period; or
(E) the failure by the Company to obtain an agreement from any
successor to assume and agree to perform this Agreement; or
(F) any willful failure or willful breach by the Company (not covered
by any of clauses (A) through (E) above) of any of the material
obligations of this Agreement, if such breach is not cured within
10 days after written notice thereof by the Executive to the
Company's Board;
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For purpose of clause (F) of this definition, no act, or failure to act, on the
Company's part shall be deemed "willful" unless done, or omitted to be done, by
the Company not in good faith and without reasonable belief that the Company's
act, or failure to act, was in the best interest of the Group.
(vi) at the option of the Executive, for a reason other than Good
Reason, effective upon 30 days of the giving of written notice of such
exercise.
(b) Obligations of the Company upon Termination of Employment.
(i) Death. In the event of the Executive's death during the
Employment Period, the Employment Period shall end as of the date of
the Executive's death and his estate and/or beneficiaries, as the case
may be, shall be entitled to the following, as soon as practicable
following the date of Executive's death:
(A) Base Salary earned but not paid prior to the date of his death;
(B) payment for all accrued but unused vacation time up to the date
of his death;
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(C) the 1997 Incentive Bonus or any bonus payable pursuant to any
Future Bonus Plan, to the extent earned but not paid with
respect to any year prior to the year in which the Executive's
death occurs;
(D) a pro rata portion (based on the number of days worked) of the
bonus payable under the 1997 Incentive Bonus Plan or any
Future Bonus Plan in effect for the year in which the
Executive's death occurs; provided, however, that the
performance goals established under the applicable program
with respect to the entire year in which the Executive's death
occurs are met;
(E) immediate vesting of and lapsing of restrictions on all
unvested Restricted Stock and any other shares of restricted
Common Stock held by the Executive on the date of his death;
(F) immediate vesting of the Option and all other Company stock
options held by the Executive on the date of his death, with
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such options remaining exercisable for twelve months from the
date of the Executive's death; and
(G) such additional benefits as may be provided by the then
existing plans, programs and/or arrangements of the Company.
(ii) Disability. If the Executive's employment is terminated due to
Disability during the Employment Period, either by the Company or by
the Executive, the Employment Period shall end as of the date of the
termination of the Executive's employment and the Executive shall be
entitled to the following, as soon as practicable following the date of
termination:
(A) Base Salary earned but not paid prior to the date of the
termination of the Executive's employment;
(B) payment for all accrued but unused vacation time up to the
date of the termination of the Executive's employment;
(C) the 1997 Incentive Bonus or any bonus payable pursuant to any
Future Bonus
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Plan, to the extent earned but not paid with respect to any
year prior to the year in which the Executive's termination of
employment occurs;
(D) a pro rata portion (based on the number of days worked) of the
bonus payable under the 1997 Incentive Bonus Plan or any
Future Bonus Plan in effect for the year in which the
Executive's termination of employment occurs; provided,
however, that the performance goals established under the
applicable program with respect to the entire year in which
the Executive's termination of employment occurs are met;
(E) immediate vesting of and lapsing of restrictions on all
unvested Restricted Stock and any other shares of restricted
Common Stock held by the Executive on the date of his
Disability;
(F) immediate vesting of the Option and all other Company stock
options held by the Executive on the date of his Disability,
with such options remaining exercisable
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for twelve months from the date of the Executive's Disability;
and
(G) such additional benefits as may be provided by the then
existing plans, programs and/or arrangements of the Company.
(iii) Cause. If the Company terminates the Executive's employment
for Cause, the Executive shall be entitled to the following, within 60
days following the date of termination:
(A) Base Salary earned but not paid prior to the date of the
termination of his employment;
(B) payment for all accrued but unused vacation time up to the
date of the termination of the Executive's employment; and
(C) such additional benefits as may be provided by the then
existing plans, programs and/or arrangements of the Company.
(iv) Without Cause or With Good Reason. If the Executive's
employment is terminated by the Company (other than for Cause or
Disability) or if
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the Executive terminates his employment with Good Reason, the
Employment Period shall end as of the effective date of termination and
the Executive shall be entitled to the following, within 10 business
days following the date of termination or such earlier date as may be
required by law:
(A) Base Salary earned but not paid prior to the date of the
termination of his employment;
(B) payment for all accrued but unused vacation time up to the
date of the termination of the Executive's employment;
(C) the 1997 Incentive Bonus or any bonus payable pursuant to any
Future Bonus Plan, to the extent earned but not paid with
respect to any year prior to the year in which the Executive's
termination of employment occurs;
(D) a lump sum amount equal to 1.5 times the sum of (x) the Base
Salary (based on the Base Salary in effect on the date of the
termination of the Executive's employment, and in the case of
a
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termination of employment by the Executive for Good Reason due
to a reduction in Base Salary under Paragraph 6(a)(v)(C),
based on the Base Salary in effect immediately prior to such
reduction) plus (y) the target annual bonus under the 1997
Incentive Bonus Plan or any future bonus plan, as the case may
be, for the year of termination;
(E) immediate vesting of and lapsing of restrictions on all
unvested Restricted Stock and any other shares of restricted
Common Stock held by the Executive on the date of the
termination of his employment;
(F) immediate vesting of the Option and all other Company stock
options held by the Executive on the date of the termination
of his employment, with all stock options remaining
exercisable until their expiration pursuant to the Stock
Incentive Plan;
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(G) continued participation, as if he were still an employee, in
the Company's medical, dental, hospitalization and life
insurance plans, programs and/or arrangements in which he was
participating on the date of the termination of his employment
on the same terms and conditions as other executives under
such plans, programs and/or arrangements until the earlier of
eighteen months from the date of the Executive's termination
or the date, or dates, he receives equivalent coverage and
benefits under the plans, programs and/or arrangements of a
subsequent employer (such coverage and benefits to be
determined on a coverage-by-coverage or benefit-by-benefit
basis); and
(H) such additional benefits as may be provided by the then
existing plans, programs and/or arrangements of the Company
(other than any severance payments payable under the terms of
any benefit plan), including outplacement
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services consistent with the Company's then existing practice
for senior executives or, if there is no such then existing
practice, consistent with the Company's past practice for
senior executives.
(v) Without Good Reason. If the Executive's employment is
terminated by the Executive without Good Reason, the Executive shall be
entitled to the following, within 60 days following the date of
termination or such earlier date as may be required by law:
(A) Base Salary earned but not paid prior to the date of the
termination of his employment;
(B) payment for all accrued but unused vacation time up to the
date of the termination of the Executive's employment; and
(C) such additional benefits as may be provided by the then
existing plans, programs and/or arrangements of the Company.
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(c) Any payment under Paragraph 6(b) hereof shall be in lieu of any
other severance, bonus or other payments to which the Executive might then be
entitled pursuant to this Agreement or any statutory or common law claim,
subject, in each case, to the execution by the Executive and delivery to the
Company of a customary release of all claims related to his employment or
termination thereof in a form to be provided by the Company. The Company's
obligations to make the payments under Paragraph 6(b) hereof, except in the case
of a termination for Cause, shall not otherwise be affected by any
circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company or any member of the Group
may have against the Executive. The Executive acknowledges and agrees that in
the event the parties dispute whether the Executive shall be entitled to the
payment hereunder, such payment shall not be deemed to be earned or otherwise
vest hereunder until such time as the dispute is resolved in accordance with
Paragraph 11(c) hereof.
(d) Notwithstanding anything to the contrary herein, if the Company's
Board has reason to believe that there are circumstances which, if
substantiated, would constitute Cause as defined herein, the Company may suspend
the Executive from employment without notice for such period
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of time as shall be reasonably necessary for the Company's Board to ascertain
whether such circumstances are substantiated. During such suspension, the
Executive shall continue to be paid all compensation and provided all benefits
hereunder; provided, however, that if the Executive has been indicted or
otherwise formally charged by governmental authorities with any felony, the
Company's Board may in its sole discretion, and without limiting the Company's
Board's discretion to terminate the Executive's employment for Cause, suspend
the Executive without continuation of any compensation or benefits hereunder,
pending final disposition of such criminal charge(s). Upon receiving notice of
any such suspension, the Executive shall promptly leave the premises of the
Company and remain off such premises and the premises of all other Group members
until further notice from the Company's Board.
7. Negative Covenants of the Executive.
(a) During the Employment Period and for a period of two (2) years
thereafter, the Executive will not, directly or indirectly:
(i) solicit, entice, persuade or induce any employee, director,
officer, associate, consultant, agent or independent contractor of the
Group to terminate his or her employment or
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engagement by the Group to become employed or engaged by any person,
firm, corporation or other business enterprise other than a member of
the Group, except in furtherance of his responsibility during the
Employment Period; or
(ii) authorize or assist in the taking of such action by any third
party.
For purposes of this Paragraph 7(a), the terms "employee," "director,"
"officer," "associate," "consultant," "agent," and "independent contractor"
shall include any person with such status at any time during the twelve (12)
months prior to the termination of the Executive's employment and for two (2)
years following the Executive's termination of employment. The Executive shall
not be deemed to have violated the provisions of this Paragraph 7(a) by reason
of an isolated act, or failure to act, not taken in bad faith.
(b) During the Employment Period and for a period of one (1) year
thereafter, the Executive will not, directly or indirectly, engage, participate,
make any financial investment in, or become employed by or render advisory or
other services to or for any person, firm, corporation or other business
enterprise (the "Competing Enterprise") which is engaged, directly or
indirectly, during the Employment Period or at the time of Executive's
termination of
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employment, as the case may be, in competition with the Group in (i) the
development, design, manufacture, marketing or distribution of wire and cable or
(ii) any other business activities of the Group accounting for more than 10% of
its net sales in the most recently completed fiscal year or reasonably expected
to do so in the current fiscal year, in the United States and in any foreign
jurisdiction in which the Group operates or, at the end of Employment Period,
proposes to operate; provided, in either case, that the competitive businesses
of the Competing Enterprise account for more than 10% of the net sales of the
Competing Enterprise for its most recently completed fiscal year and the
Executive does not work or consult in such competitive business. The foregoing
covenant shall not be construed to preclude the Executive from making any
investments in the securities of any company, whether or not engaged in
competition with the Group, to the extent that such securities are actively
traded on a national securities exchange or in the over-the-counter market in
the United States or any foreign securities exchange and, after giving effect to
such investment, the Executive does not beneficially own securities representing
more than 1% of the combined voting power of the voting securities of such
company.
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(c) During the Employment Period and thereafter without limit as to
time, the Executive will not (other than in the regular course and in
furtherance of the Group's business) divulge, furnish or make available to any
person any knowledge or information with respect to the business or affairs of
the Group which is confidential, including, without limitation, "know-how",
trade secrets, customer and supplier lists, pricing policies, operational
methods, marketing plans or strategies, product development techniques or plans,
business acquisition or disposition plans, new personnel employment plans,
methods of manufacture, technical processes, designs and design projects,
inventions and research projects and financial budgets and forecasts of the
Group except (1) information which at the time is available to others in the
business or generally known to the public other than as a result of disclosure
by the Executive not permitted hereunder, and (2) when required to do so by a
court of competent jurisdiction, by any governmental agency or by any
administrative body or legislative body (including a committee thereof) with
purported or apparent jurisdiction to order the Executive to divulge, disclose
or make accessible such information. All memoranda, notes, lists, records,
electronically stored data, recordings or videotapes and other documents (and
all
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copies thereof) made or compiled by the Executive or made available to the
Executive (whether during his employment by the Group or by any predecessor
thereof) concerning the business of the Group or any predecessor thereof shall
be the property of the Company or such other member of the Group and shall be
delivered to the Company or such other member of the Group promptly upon the
termination of the Employment Period.
(d) The Executive acknowledges that all developments, including,
without limitation, inventions, patentable or otherwise, trade secrets,
discoveries, improvements, ideas and writings that alone or jointly with others
the Executive may conceive, make, develop or acquire during the period of his
employment by the Group and any predecessor thereof (collectively, the
"Developments"), are and shall remain the sole and exclusive property of the
Group and the Executive hereby assigns to the Group all of his right, title and
interest in all such Developments. The Executive shall promptly and fully
disclose all future Developments to the Company's Board, and, at any time upon
request and at the expense of the Company, shall execute, acknowledge and
deliver to the Group all instruments that the Group shall prepare, give
evidence, and take all other actions that are necessary or desirable in the
reasonable
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opinion of the Company's counsel, to enable the Group to file and prosecute
applications for and to acquire, maintain and enforce all letters patent,
trademark registrations or copyrights covering the Developments in all countries
in which the same are deemed necessary.
(e) The Executive acknowledges that the services to be rendered by
the Executive are of a special, unique and extraordinary character and, in
connection with such services, the Executive will have access to confidential
information vital to the Group's business and that irreparable injury would be
sustained by the Group in the event of his breach of any of the covenants
contained in this Paragraph 7, which injury could not be remedied adequately by
the recovery of damages in an action at law. Accordingly, the Executive agrees
that, upon a breach or threatened breach by him of any of such covenants, the
Company and, to the extent appropriate, any other member of the Group shall be
entitled, in addition to and not in lieu of any and all other remedies, to an
injunction to be issued by any court of competent jurisdiction restraining the
commission or continuance of any such breach or threatened breach upon minimal
bond, with or without surety, and that such an injunction will not work an undue
hardship on him.
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(f) The provisions of this Paragraph 7 shall survive the
termination of this Agreement, irrespective of the reasons therefor.
(g) If any court determines that any of the provisions of this
Paragraph 7 is invalid or unenforceable, the remainder of such provisions shall
not thereby be affected and shall be given full effect without regard to the
invalid provisions. If any court construes any of the provisions of this
Paragraph 7, or any part thereof, to be unreasonable because of the duration of
such provision or the geographic scope thereof, such court shall have the power
to reduce the duration or restrict the geographic scope of such provision and to
enforce such provision as so reduced or restricted.
8. Reimbursement of Business Expense.
During the Employment Period, the Executive is authorized to incur
reasonable business expenses in carrying out his duties and responsibilities
under the Agreement, and the Company or the relevant member of the Group shall
promptly reimburse him for all such reasonable business expenses incurred in
connection with carrying out the business of such member of the Group, subject
to documentation in accordance with such member of the Group's policy.
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9. Release.
In consideration of the Company's granting of the Option, the
Executive releases GCC, the Company, Xxxxxxx PLC, and any of their respective
past and present officers, directors, shareholders, subsidiaries, employees,
agents and affiliates from any and all claims, demands and causes of action
whatsoever related to the Executive's employment prior to the Effective Date by
GCC and its affiliates, in law or equity, known or unknown, accrued or
unaccrued, past, present or future, relating to any acts or omissions during all
periods ending prior to the Effective Date, whether arising out of any other
arrangements or understandings, or otherwise; provided, however, that neither
this release nor the provisions of Paragraph 11(b) hereof shall adversely affect
(i) the Executive's rights to any Base Salary (net of withholding taxes) or
vacation provided for therein that is accrued but unpaid as of the Effective
Date; (ii) the Executive's rights with respect to Xxxxxxx PLC options previously
granted to the Executive, which shall remain exercisable in accordance with the
terms of the Xxxxxxx PLC (No. 3) U.S. Executive Share Option Scheme, if any;
(iii) the Executive's rights under existing plans, programs and/or arrangements
of the Company which are accrued but unpaid as of the Effective Date; (iv) the
Executive's rights to
29
indemnification under any indemnification agreement, applicable law and the
certificates of incorporation and by-laws of the Company and other members of
the Group, or the Executive's rights under any director's and officers'
liability insurance policy covering the Executive, in each case arising out of
or relating the Executive's employment prior to the Effective Date; or (v) the
Executive rights under this Agreement.
10. Indemnification.
To the fullest extent permitted by law and the Company's
certificate of incorporate and by-laws, the Company shall promptly indemnify the
Executive for all amounts (including, without limitation, judgments, fines,
settlement payments, losses, damages, costs and expenses (including reasonable
attorneys' fees)) incurred or paid by the Executive in connection with any
action, proceeding, suit or investigation arising out of or relating to the
performance by the Executive of services for (or acting as a fiduciary of any
employee benefit plans, programs or arrangements of) the Company or other member
of the Group, including as a director, officer or employee of the Company or
other member of the Group. The Company also agrees to maintain a director's and
officers' liability insurance policy covering the Executive to the extent the
Company
30
provides such coverage for its other executive officers. Notwithstanding any
other provision of this Agreement, the provisions of this Paragraph 10 shall
survive any termination or expiration of this Agreement.
11. Miscellaneous.
(a) This Agreement is intended to be performed in, and shall be
construed and enforced in accordance with the laws of, the State of Kentucky
without reference to principles of conflict of laws.
(b) Upon the Effective Date, this Agreement shall incorporate the
complete understanding and agreement between the parties with respect to the
subject matter hereof and (subject to Paragraph 9 hereof) supersede any and all
other prior or contemporaneous agreements, written or oral, between the
Executive and any member of the Group or any predecessor thereof with respect to
such subject matter, other than the Change-in-Control Agreement, of even date
herewith, between the Company, GCC and the Executive (the "Change-in-Control
Agreement"); provided, however, that no payment or benefit shall be made or
provided hereunder if and to the extent such payment or benefit would be
duplicative of a payment or benefit to which the Executive is then entitled
under the Change-in-Control Agreement. No provision hereof may be modified or
waived except by a
31
written instrument duly executed by the Executive and the Company with the
express approval of the Compensation Committee.
(c) All differences, claims or matters in dispute arising out of
this Agreement, the breach hereof or otherwise arising between the Company or
any of its affiliates and the Executive shall, at the election of either party,
by notice to the other, be submitted to arbitration by the American Arbitration
Association or its successor, in Cincinnati, Ohio. Such arbitration shall be
governed by the then existing rules of the American Arbitration Association and
the laws of the State of Kentucky as then in effect. Any arbitration conducted
pursuant to the provisions of this Agreement shall be conducted by a recognized
independent and impartial arbitrator mutually agreed to by the parties or, if
they cannot agree within thirty (30) days after the initial demand for
arbitration, by three arbitrators, one chosen by the Company, one chosen by the
Executive and the third (who shall be a recognized independent and impartial
arbitrator and who shall act as chairperson and will be compensated at a rate
generally equivalent to his or her normal billing rate or compensation) selected
by the two so chosen; provided, that if either party fails to appoint an
32
arbitrator within 20 days of written notice by the other that it has appointed
an arbitrator, then the arbitration shall be conducted by an arbitrator selected
by the American Arbitration Association in accordance with its then existing
rules. If the arbitrators selected by the parties fail to agree on the third
arbitrator within thirty (30) days of the appointment of the second arbitrator,
the third arbitrator shall be selected by the American Arbitration Association
in accordance with its then existing rules. The impartial arbitrator shall set a
time for hearing within sixty (60) days of his/her selection. Each party shall
have an opportunity to present evidence on the issues in dispute before the
arbitrator and each party may be represented by legal counsel. The decision of
the arbitrator(s) shall be rendered within thirty (30) days of the close of the
hearing. The fees and expenses of the impartial arbitrator shall be shared
equally by the parties and each party shall bear the cost of any arbitrator
chosen unilaterally by that party. Any determination reached or award granted
pursuant to arbitration shall be final, non-appealable and binding on the
parties. The judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction. The parties acknowledge that their agreement
pursuant to the terms of this Paragraph 11(c) to submit the resolution of
33
all disputes arising out of this Agreement to arbitration by the American
Arbitration Association is the result of their mutual and voluntary negotiation
and agreement, and is not intended to and does not constitute a "condition or
precondition of employment" within the meaning or interpretation of that phrase
as used in Kentucky Revised Statutes 336.700(2).
(d) The Executive acknowledges that before entering into this
Agreement he has received a reasonable period of time to consider this Agreement
and has had sufficient time and an opportunity to consult with any attorney or
other advisor of his choice in connection with this Agreement and all matters
contained herein, and that he has been advised to do so if he so chooses. The
Executive further acknowledges that this Agreement and all terms hereof are
fair, reasonable and are not the result of any fraud, duress, coercion, pressure
or undue influence exercised by the Company, that he has approved and entered
into this Agreement and all of the terms hereof on his own free will, and that
no promises or representations have been made to him by any person to induce him
to enter into this Agreement other than the express terms set forth herein.
(e) The Company shall be entitled to deduct and withhold from all
compensation payable to the Executive
34
pursuant to this Agreement all amounts required to be deducted and withheld
therefrom pursuant to any present or future law, regulation or ordinance of the
United States of America or any state or local jurisdiction therein or any
foreign taxing jurisdiction.
(f) Paragraph headings are included in this Agreement for
convenience of reference only and shall not affect the interpretation of the
text hereof.
(g) Any and all notices, demands or other communications to be
given or made hereunder shall be in writing and shall be deemed to have been
fully given or made when personally delivered, or on the third business day
after mailing from within the continental United States by registered mail,
postage prepaid, addressed as follows:
If to the Company:
General Cable Corporation
0 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
If to the Executive:
Xxxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Either party may change the address to which any notices to it shall be sent by
giving to the other party written notice of such change in conformity with the
foregoing.
35
(h) This Agreement may be executed in two or more counterparts,
each of which shall constitute an original but all of which together shall
constitute one and the same instrument.
(i) This Agreement may be assigned by the Company to, and shall
inure to the benefit of, any successor to substantially all the assets and
business of the Company as a going concern, whether by merger, consolidation or
purchase of substantially all of the assets of the Company or otherwise,
provided that such successor shall assume the Company's obligations under this
Agreement. This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
(j) The Company shall be deemed to have performed its obligations
to make payments or provide benefits to the
36
Executive under this Agreement if it has caused a member of the Group to make
such payments or provide such benefits.
IN WITNESS WHEREOF, each of the Company and the Executive has
executed this Agreement this_____day of May, 1997, to become effective on the
Effective Date.
GENERAL CABLE CORPORATION
By:______________________________
Xxxxxxx Xxxxxxxxxx
Chairman, Chief Executive
Officer and President
______________________________
Xxxxxxx X. Xxxxx
37
ANNEX I
38
ANNEX II
39
