EMPLOYMENT AGREEMENT
Agreement made and entered into this 13th day of May, 1997, by and
between General Cable Corporation, a Delaware corporation (the "Company"), GCC
Corporation, a Delaware corporation and a wholly owned subsidiary of the Company
("GCC"), and Xxxxxxx Xxxxxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive and GCC are parties to an employment agreement
effective as of September 9, 1994, as amended through the date of this
Agreement, which is currently in effect (the "Existing Agreement"); and
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 the Existing Agreement be terminated and
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 and the Existing
Agreement shall remain in full force and effect in accordance with its terms.
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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, Chief Executive Officer and President of the Company, GCC, GK Technologies,
Incorporated, a New Jersey corporation ("GK"), General Cable Industries, Inc., a
Delaware corporation ("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 and
Chairman of the Company's Board, and the Company shall use its best efforts to
ensure that the Executive continues to so serve during the Employment Period.
(b) In his capacity as Chief Executive Officer and President 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.
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(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; provided,
however, that, subject to his fiduciary obligations to the Company, the
Executive may continue to serve as a director of JLG Industries; and provided,
further, however, that nothing herein shall preclude the Executive from making
and managing personal investments or serving in any capacity with any civic,
educational or charitable organization, so long as such activities do not
interfere with the performance of his duties hereunder.
3. Compensation.
(a) The Executive shall be paid a base salary during the Employment
Period at the annual rate of Six Hundred Thousand Dollars ($600,000)
(retroactive to January 1, 1997), payable in accordance with the regular payroll
practices of the Company (except that payment of such retroactive base salary
shall be made in a lump sum on the Effective Date). The Compensation Committee
of the Company's Board (the "Compensation Committee") shall
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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. Once increased, the Executive's base salary
hereunder may not thereafter be decreased except if the Compensation Committee
or the Board determine to address adverse economic circumstances by making an
across-the-board reduction in compensation affecting all executives of the
Company. 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;
provided, however, that the foregoing shall not preclude the Executive from
being awarded a bonus in respect of such fiscal year which is in addition to the
1997 Incentive Bonus, such award to be in
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the discretion of the Compensation Committee. 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 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.
(c) The Executive shall be entitled, annually during the Employment
Period, to vacation, without loss or diminution of compensation, of four (4)
weeks, such vacation to be taken at such time or times, and as a whole or in
increments, as the Executive shall elect, consistent with the reasonable needs
of the Group's business and such vacation policies as reasonably may be
established for senior executives by the Compensation Committee.
4. Employee Benefit Programs.
(a) During the Employment Period, the Executive shall be entitled to
participate in and shall have the benefit of all group life, disability,
hospital, surgical and major medical insurance plans and programs and other
employee benefit plans and programs as generally are made
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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 be entitled to
continue to receive executive fringe benefits consistent with those he is
currently receiving (including any inflationary adjustments approved by the
Compensation Committee in its sole discretion) and shall receive or participate
in any other 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 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 286,000 shares of Common Stock at the
initial Public Offering price of the Common Stock (the "Option"). The exercise
price of the Option shall be
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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 Two Million
Dollars ($2,000,000) 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.
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,
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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:
(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
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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
(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
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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.
(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
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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 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 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 Executive's bonus opportunity set forth in Paragraph 3(b)
hereof or a material reduction
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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;
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
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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;
(C) the 1997 Incentive Bonus (or any discretionary
additional bonus for 1997) or any bonus payable
pursuant to any Future Bonus Programs, to the extent
earned but not paid with respect to any year prior to
the year in which the Executive's death occurs;
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(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 such options remaining exercisable for
eighteen months from the date of the Executive's death;
and
(G) such additional benefits as may be provided by the then
existing plans,
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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 discretionary
additional bonus for 1997) or any bonus payable
pursuant to any Future Bonus Plans, to the extent
earned but not paid with respect to any year prior to
the year in which the
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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 for
eighteen months from the date of the Executive's
Disability; and
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(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 the Executive terminates his employment with
Good Reason, the Employment Period shall end as of the
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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 discretionary
additional bonus for 1997) or any bonus payable
pursuant to any Future Bonus Plans, 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 two 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 two years 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).
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(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.
(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
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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 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
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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 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.
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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 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
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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.
(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
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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 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
27
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 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.
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(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.
(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
29
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. The
Company shall promptly pay or reimburse the Executive for reasonable legal fees
(based on hours charged) and expenses through the period ending February 27,
1997 incurred by the Executive in connection with the negotiation of this
Agreement. The Company also shall pay or reimburse the Executive for all
reasonable legal fees and expenses incurred by the Executive in disputing in
good faith any
30
issue hereunder relating to the Executive's employment or the termination
thereof or in seeking in good faith to obtain or enforce any benefit or right
provided by this Agreement in which the dispute is resolved in the Executive's
favor. Such payments shall be made within five (5) business days after delivery
of the Executive's written request for payment accompanied with such evidence of
fees and expenses incurred as the Company reasonably may require.
9. Termination of Existing Agreement; Release.
The Existing Agreement shall automatically terminate, and be of no
further force or effect, upon the Effective Date. Effective upon the Executive's
receipt of the payment in the amount of One Million Seven Hundred Eighty-eight
Thousand Dollars ($1,788,000) specified in Section 4(g) of the Existing
Agreement (the "Termination Payment"), which the Executive agrees to confirm to
GCC and the Company in writing, 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
31
any acts or omissions during all periods ending prior to the Effective Date,
whether arising out of the Existing Agreement or 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 under the Existing Agreement with respect to the Termination
Payment or 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; (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
indemnification under the Existing Agreement, 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.
32
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 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
33
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, including the
Existing Agreement, 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 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
34
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 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
35
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 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).
36
(d) The Executive acknowledges that before entering into this
Agreement and agreeing to terminate the Existing 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 (including the terms of termination of
the Existing Agreement) 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
and agreed to the termination of the Existing Agreement 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 or terminate the Existing 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 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
37
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 Acquisition Holding Corp.
0 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
If to the Executive:
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxx 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.
(h) This Agreement may be executed in two or more counterparts, each
of which shall constitute an original but
38
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
39
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:_______________________________
Xxxxxx X. Xxxxxx
Executive Vice President,
General Counsel and
Secretary
GCC CORPORATION
By:______________________________
Xxxxxx X. Xxxxxx
Executive Vice President,
General Counsel and
Secretary
__________________________________
Xxxxxxx Xxxxxxxxxx
40
ANNEX I
41
ANNEX II
42