Amended and Restated Employment Agreement

Exhibit 10.1

Amended and Restated Employment Agreement

THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is between Xxxxxxx Cable, Inc. (the “Company”) and Xxxxxxx Xxxxx, a resident of Illinois (“Employee”).

WHEREAS, Employee has previously entered into an employment agreement with the Company dated December 30, 2008 (the “Prior Agreement”);

WHEREAS, the Company desires to continue Employee’s employment with the Company under the terms set forth herein which shall supersede the Prior Agreement which shall have no further force or effect after this Agreement becomes effective;

NOW, THEREFORE, in consideration of the promises and the mutual covenants herein contained, the parties hereto agree as follows:

1. Definitions.

The terms used in the Agreement shall be defined as follows:

(a) “Agreement” shall mean this Agreement as amended from time to time.

(b) “Base Salary” shall mean the annual base salary payable to Employee pursuant to Section 4(a) hereof.

(c) “Cause” shall mean termination of the Employee’s employment with the Company because of, but not to be limited to, Employee’s (1) gross misconduct; (2) material nonperformance; (3) material breach of this Agreement; (4) conviction or entry of a plea of guilty or nolo contendere to any felony or misdemeanor or the entry of any final civil judgment in connection with any allegation of fraud, misrepresentation, misappropriation or any other intentional tort or statute violation; (5) insubordination; (6) violation of the Company’s sexual harassment/anti-discrimination policies; or (7) a court order prohibiting Employee from working for the Company for a period that extends beyond six months. Material nonperformance shall be deemed to occur only if such material nonperformance has not been corrected by the Employee within two weeks of written notice from the Company of the occurrence of such material nonperformance, which notice shall specifically set forth the nature of the material nonperformance and be delivered no more than thirty (30) days following the event giving rise to the material nonperformance notice.

(d) “Change in Control” means any of the following events:

i. 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”);

ii. 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;

iii. 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;

iv. 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

v. any other change of ownership or effective control (as defined in Section 280G(b)(2) of the Internal Revenue Code (the “Code”)).

(e) “Company” shall mean Xxxxxxx Cable, Inc., its successors or assigns.

(f) “Date of Termination” means: (i) if Employee’s employment terminates by virtue of Employee’s death, the date of death and (ii) in all other cases, the date as of which a termination of Employee’s employment becomes effective in accordance with the provisions of this Agreement.

(g) “Disabled” shall mean unable to perform the essential functions of the position, with or without reasonable accommodation, as a result of a physical or mental impairment, as evaluated by sufficient documentation including doctors’ statements.

(h) “EBITDA” shall mean the earnings before interest, taxes, depreciation and amortization.

(i) “Effective Date” shall mean , 2013.

(j) “Employee” shall mean Xxxxxxx Xxxxx, a resident of Illinois.

(k) “Employee Benefit Plans” shall mean any plans within the meaning of Section 4(d) of this Agreement.

(l) “Period” shall mean the one-year period commencing on the Effective Date and ending on the one-year anniversary thereof; provided, however, that the Period shall, on a daily basis, beginning with the Effective Date, be automatically extended by one day, such that at any time, after the Effective Date, the remaining duration of the Period shall be one year. Such day-to-day extensions of the Period shall cease upon either (i) either party delivering written notice of such cessation to the other party; provided that such cessation of the automatic extensions shall not be effective earlier than the date of delivery of such notice or (ii) Employee’s Date of Termination.

(m) “Substantial Breach” shall mean without the Employee’s prior consent: (1) a material reduction in the Employee’s responsibilities hereunder; provided, that it shall not be deemed to be a Substantial Breach if Employee’s duties are revised so long as he remains in a position of at least a senior manager within the Company; (2) a material reduction by the Company in the Base Salary of Employee except to the extent permitted under Section 4(a) hereof; (3) any willful failure or willful breach by the Company of any material obligations of this Agreement; and (4) a change in location of Employee’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 Employee was located as of the Effective Date. The Employee must give written notice of termination to the Company of a Substantial Breach within 90 days of the occurrence of any event which constitutes Substantial Breach. The Company shall have thirty (30) days after written notice thereof by the Employee to the Company’s Board of Directors to remedy the occurrences of clause (1) through (4) above. Notwithstanding any language in this Agreement to the contrary, if the Company fails to remedy the occurrences of clause (1) through (4) above in accordance with the preceding sentence, the effective date of Employee’s termination shall not be less than thirty (30) nor more than thirty-five (35) days after the date the notice of termination is given to the Company by Employee.

2. Employment and Duties.

(a) General. The Company hereby employs Employee, and Employee agrees upon the terms and conditions herein set forth and shall perform duties substantially the same as normally performed by persons in like positions in similar companies, or as may be assigned from time to time.

(b) No Other Employment. Throughout the time that Employee is employed by the Company, Employee shall, except as may from time to time be otherwise agreed in writing by the Company and unless prevented by ill health, devote his full-time working hours to his duties hereunder and Employee shall not, directly or indirectly, render services to any other person or organization for which he receives compensation (excluding volunteer services or outside board activities with modest time commitments) without the written consent of the Company or otherwise engage in activities with would interfere significantly with the performance of his duties hereunder.

3. Term of Employment. Subject to earlier termination of employment pursuant to Sections 5, 6, 7 or 8 of this Agreement, the Company shall retain Employee during the Period; and Employee shall serve in the employ of the Company for the Period as defined in Section 1(j).

4. Compensation and Other Benefits. Subject to the provisions of this Agreement, the Company shall pay and provide the following compensation and other benefits to Employee during the term of his employment as compensation for services rendered hereunder;

(a) Base Salary. The Company shall pay to Employee a Base Salary at the rate of $410,000 per annum, payable bimonthly. The Company shall be entitled to deduct or withhold all taxes and charges that the Company may be required to deduct or withhold therefrom.

(b) Incentive Compensation. At all times during the Period, Employee shall be eligible to receive Incentive Compensation of up to 60% of Base Salary based on the Company’s achievement of earnings and other corporate performance goals as established by the CEO in his sole discretion at or before the beginning of each such fiscal year.

(c) Change in Control Benefits. In the event a Change of Control of the Company is consummated and Employee is employed by the Company on such date:

i. Employee shall receive a lump sum payment equal to $300,000 on the one year anniversary of the effective date of such Change in Control (the “Change in Control Special Bonus”); and

ii. Employee’s annual bonus with respect to the year in which the effective date of the Change in Control occurs shall be equal to 100% of his target annual bonus for such year, which amount shall be payable no later than two and one-half (2.5) months following the last day of the year in which the effective date of the Change in Control occurs (the “Change in Control Annual Bonus”).

(d) Automobile Allowance. Company shall pay Employee a gross amount of $800 per month as an automobile allowance. The Company shall be entitled to deduct or withhold from the gross amount of such automobile allowance all taxes and charges which the Company may be required to deduct or withhold therefrom. Employee shall produce such reasonable documentation as requested by the Company to evidence that Employee has spent such amount on a car purchase or lease payment, gasoline, insurance or car maintenance.

(e) Other Employee Benefit Plans. Subject to the plans’ eligibility requirements, Employee shall be eligible to participate in all pension and welfare plans and programs of the Company for executive employees, existing from time to time, including, without limitation, the following:

i. All qualified benefit plans and programs (e.g., defined contribution, supplemental retirement and Section 401(k) plans, life insurance plans and programs);

ii. All hospitalization and medical plans and programs; and

iii. All retirement plans and programs.

5. Termination of Employment for Cause.

(a) Compensation and Benefits. If, prior to the expiration of the Period, (i) Employee’s employment is terminated by the Company for Cause, or (ii) Employee resigns from his employment hereunder other than under circumstances covered by Section 6 below, Employee shall be eligible to receive, when the same would otherwise have been due, the base salary and any bonus then payable through the Date of Termination and Employee shall receive no further payments or benefits under this Agreement except for the right to receive benefits under any plan or program, to the extent vested, in accordance with the terms of such plan or program and except for benefits provided in accordance with customary practices of the Company at Employee’s expense (e.g., hospitalization and medical insurance under COBRA).

(b) Date of Termination. The Date of Termination of Employee’s employment by the Company under this Section 5 shall be two (2) weeks after receipt by Employee of written notice of termination for Cause or after receipt by the Company of written notice of Employee’s resignation.

6. Termination of Employment Without Cause or Resignation After Substantial Breach.

(a) Absence of Change in Control. If, prior to the expiration of the Period, Employee’s employment is terminated by the Company without Cause for any reason, or if, prior to the expiration of the Period Employee resigns from his employment hereunder following a Substantial Breach, (i) the Company shall continue to pay Employee his Base Salary through the Period, payable in accordance with the Company’s standard payroll policies and (ii) all of Employee’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.

(b) Following Change in Control. If, within 12 months following the effective date of a Change in Control of the Company and prior to the expiration of the Period, Employee’s employment is terminated by the Company without Cause for any reason, or if, prior to the expiration of the Period, Employee resigns from his employment hereunder following a Substantial Breach, (i) the Company shall pay to Employee, in lieu of the amount described in Section 6(a), an amount equal to one and one-half (1.5) times the amount of Employee’s Base Salary, with such amount to be payable in twenty-four (24) consecutive equal semi-monthly installments and in accordance with the Company’s standard payroll policies, (ii) subject to Section 6(d), the Change in Control Special Bonus and Change in Control Annual Bonus shall become payable in a lump sum no later than the tenth (10^th) day following the date that the Release (as defined in Section 6(d)) executed by Employee becomes irrevocable, and (iii) all of Employee’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.

(c) Cost of COBRA Continuation Coverage. If and to the extent that Employee, following a termination of Employee’s employment described in Section 6(a) or (b), properly and timely elects (on behalf of Employee and Employee’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, Employee 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 6(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 6 Employee’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 6 (without regard to any acceleration by the Company of such payments), whereupon Employee shall be fully responsible for the cost of continuing coverage and benefits, if any. Notwithstanding the foregoing, this Section 6(c) shall cease to apply as of the effective date of any regulation or other guidance under which payment of such component would be deemed to violate any nondiscrimination requirements under the Patient Protection and Affordable Care Act.

(d) Release. Employee’s receipt of the amounts under Section 6 will be conditioned on his execution, return, and non-rescission of a full and final release of claims in favor of the Company, the form of which will be provided by the Company within ten (10) days of Employee’s termination of employment (the “Release”). The Release must be executed by Employee and returned to the Company, and must become irrevocable, within the period that is forty-five (45) days (or such longer period, to the extent required by law) following the Date of Termination of employment or service with the Company. To the extent that such forty-five (45) day period (or such longer period, to the extent required by law) spans two calendar years, no payment of any severance amount or benefit that is (i) considered to be nonqualified deferred compensation within the meaning of Section 409A of the Internal Revenue Code and (ii) conditioned upon the Release, shall be made before the first day of the second calendar year, regardless of when the Release is actually executed and returned to the Company. If Employee does not deliver an original, signed release to the Company within forty-five (45) days (or such longer period, to the extent required by law) following the Date of Termination, (i) Employee’s rights shall be limited to those made available to Employee as if Employee were terminated under Section 5 above, and (ii) the Company shall have no obligation to pay or provide to Employee any amount or benefits described in this Section 6 or any other monies on account of the termination of Employee’s employment.

7. Termination of Employment by Disability.

(a) Compensation and Benefits. If Employee becomes Disabled prior to the expiration of the Period, the Company shall be entitled to terminate Employee’s employment at the later of (6) six months from the date Employee becomes Disabled but not beyond the end of the Period or the date the Company could terminate Employee in accordance with the Company’s normal policies in such matters as applied in all other salaried employees. Employee will receive no compensation or benefits following his termination, but Employee shall be entitled to receive benefits under the Company’s plan(s) or program(s) in accordance with the terms of such plan(s) or program(s).

(b) Date of Termination. The Date of Termination of Employee’s employment under this Section 7 shall be the date determined pursuant to Section 7(a) above.

8. Termination of Employment by Death. Employee’s employment will end in the event of his death. Employee will receive no compensation or benefits following his death, but if Employee dies prior to the expiration of the Period, the Employee’s estate or his beneficiary as appropriate shall be entitled to receive benefits under the Company’s plan(s) or program(s) in accordance with the terms of such plan(s) or program(s).

9. Noncompetition and Nonsolicitation. During Employee’s employment with the Company and for any period following employment during which he is entitled to receive post-employment compensation in any form at the rate of his ending Base Salary, Employee shall refrain from directly or indirectly, on his own behalf or on behalf of any other person or entity, competing with the Company or any of its subsidiaries, anywhere in North America, including but not limited to directly or indirectly engaging or investing in, owning, managing, operating, financing, controlling, or participating in the ownership, management, operation, financing, or control of, being employed by, associated with, or in any manner connected with, or rendering services or advice to, in any capacity whatsoever (whether individually or as a shareholder (except as a shareholder owning less than 1% or less of the outstanding capital stock of a publicly traded corporation), partner, member, director, officer, employee, or consultant), for any entity or person that engages in or is in the process of or anticipates engaging in the manufacture of wire and cable products. In the event that Employee violates the terms of this Section 9, the term of this covenant not to compete shall be extended for a period of time equal to the period of time that Employee was violating the terms of this Section 9.

During Employee’s employment with the Company, and for a period of twelve (12) months following the end of his employment for any reason, whether voluntary or involuntary, and with or without the existence of post-employment compensation, Employee shall not, directly or indirectly, (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, (ii) in any way interfere with the relationship between the Company and any of its employees, (iii) employ, or otherwise engage as an employee, independent contractor, or otherwise, any employee of the Company, or (iv) induce or attempt to induce any supplier or licensee of the Company to cease doing business with the Company, or in any way interfere with the relationship between any supplier or licensee of the Company. During Employee’s employment with the Company and for all time thereafter, Employee shall not disparage, or induce others to disparage, the Company, its owners, employees, practices, products or services. For purposes of Section 9, “employee” shall mean any then-current employee or individual who was employed by the Company at any time during the six (6) month period immediately preceding the end of Employee’s employment.

In the event of a breach by Employee of any covenant set forth in this Section 9, the term of such covenant will be extended by the period of the duration of such breach. Employee will not, at any time during or after employment, disparage the Company or any of its owners, directors, officers, employees, agents, products or services. Employee will within ten days after accepting any employment, advise the Company of the identity of any employer of Employee. The Company may serve notice upon each such employer that Employee is bound by this Agreement and furnish each such employer with a copy of this Agreement or relevant portions thereof.

10. Nondisclosure of Confidential Information.

(a) Definition. For purposes of this Agreement “Confidential Information” means, but is not limited to, any information or compilation of information, not generally known, which is proprietary to the Company and relates to the Company’s existing or reasonably foreseeable business, including, but not limited to, trade secrets and information relating to the Company’s

services, marketing plans or proposals and customer information. All information which the Company identifies as being “confidential” or “trade secret” shall be presumed to be Confidential Information. Confidential Information shall also include any confidential information of a parent, subsidiary or sister corporation of the Company and any information disclosed by a third party under contract with the Company which contract requires such disclosed information be kept confidential. Confidential Information shall not include information that is in or enters the public domain other than through a breach of confidentiality owed to the Company.

(b) Nondisclosure. During the Period and at all times thereafter, Employee shall hold in strictest of confidence and will never disclose, furnish, transfer, communicate, make assessable to any person or use in any way Confidential Information for Employee’s own or another’s benefit or permit the same to be used in competition with the Company, nor will Employee accept any employment which would, by the nature of the position, inherently involve the use or disclosure by Employee of Confidential Information.

11. Remedies and Injunctive Relief. The parties acknowledge that the Company and/or its subsidiaries will suffer irreparable harm if Employee breaches Sections 9 or 10 of this Agreement. Accordingly, the Company shall be entitled, in addition to any other rights and remedies that it may have, at law or at equity, to an injunction, without the parting of a bond or other security, enjoining or restraining Employee from any violation of Sections 9 or 10 of this Agreement. Employee hereby consents to the Company’s right to the issuance of such injunction.

12. Section 409A. If a payment under this Agreement does not qualify as a short-term deferral under Code Section 409A and Treas. Reg. §1.409A-1(b)(4), and the Employee is a Specified Employee as of the Date of Termination, distributions to the Employee may not be made before the date that is six months after the Date of Termination or, if earlier, the date of the Employee’s death (the “Six-Month Delay Rule”). Payments to which the Employee otherwise would be entitled during the first six months following the Date of Termination (the “Six-Month Delay”) will be accumulated and paid on the first day of the seventh month following the Date of Termination. Notwithstanding the Six-Month Delay Rule set forth in this Section 12:

(a) To the maximum extent permitted under Code Section 409A and Treas. Reg. §1.409A-1(b)(9)(iii), during the first month of the Six-Month Delay, the Company will pay the Employee an amount equal to the lesser of (i) the total lump sum severance provided under Section 6(d)(i) and (ii) above, or (ii) two times the lesser of (A) the maximum amount that may be taken into account under a qualified plan pursuant to Code Section 401(a)(17) for the year in which the Date of Termination occurs, and (B) the sum of the Employee’s annualized compensation based upon the annual rate of pay for services provided to the Company for the taxable year of the Employee preceding the taxable year of the Employee in which his Date of Termination occurs (adjusted for any increase during that year that was expected to continue indefinitely if the Employee had not had a termination of employment); provided that amounts paid under this sentence will count toward, and will not be in addition to, the total payment amount required to be made to the Employee by the Company under Section 6(d) above.

(b) To the maximum extent permitted under Code Section 409A and Treas. Reg. §1.409A-1(b)(9)(v)(D), within ten (10) days of the date of termination, the Company will pay the Employee an amount equal to the applicable dollar amount under Code Section 402(g)(1)(B) for the year of the Employee’s date of termination; provided that the amount paid under this sentence will count toward, and will not be in addition to, the total payment amount required to be made to the Employee by the Company under Section 6(d) above.

(c) Each payment under this Agreements is intended to be treated as one of a series of separate payment for purposes of Code Section 409A and Treas. Reg. §1.409A-2(b)(2)(iii).

(d) For purposes of this Agreement, “Specified Employee” has the meaning given that term in Code Section 409A and Treas. Reg. 1.409-1(c)(i). The Company’s “specified employee identification date” and “specified employee effective date” (as described in Treas. Reg. 1.409-1(c)(i)(3)) will be the dates designated as such by the Company in a written resolution for all plans and agreements subject to Code Section 409A or, in the absence of such resolutions, then the “specified employee identification date” and the “specified employee effective date” for this Agreement shall be December 31 and January 1, respectively, of each succeeding year.

13. Binding Agreement/Assignment. This Agreement shall be assignable by the Company and the terms of this Agreement shall bind and inure to the benefit of the Company and its successors and assigns.

14. Severability. If the final determination of a court of competent jurisdiction declares, after the expiration of the time within which judicial review (if permitted) of such determination may be perfected, that any term of provision hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired and (b) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision.

15. Survival of Provisions. The parties agree that Sections 9 and 10, and all other provisions necessary for enforcement of such provisions shall survive termination of this Agreement and termination of Employee’s employment for any reason.

16. Others’ Confidential Information. If Employee possesses any information that he knows or should know is considered by any third party, such as a former employer of his, to be confidential, trade secret, or otherwise proprietary, Employee shall not disclose such information to the Company or use such information to benefit the Company in any way.

17. Understandings. Employee acknowledges and agrees that (a) the Company informed him, as part of the offer of employment and prior to his accepting employment with the Company, that a confidentiality, noncompetition, and nonsolicitation agreement would be required as part of the terms and conditions of employment; (b) he executed this Agreement in anticipation of but prior to commencing employment with the Company; (c) he has carefully considered the restrictions contained in this Agreement and determined that they are reasonable as to duration, geographic area and scope; and (d) the restrictions in this Agreement will not unduly restrict Employee in securing other employment in the event of termination from the Company.

18. Full Agreement; Amendment; Waiver. This Agreement contains the full agreement between the parties as to its subject matter and may not be modified, amended or waived in any manner except by an instrument in writing signed by both parties hereto. The waiver by either party of compliance with any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.

19. Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary, this Plan is intended to comply with Code Section 409A and the interpretive guidance thereunder. The Plan shall be construed and interpreted in accordance with such intent.

20. Governing Law. All matters affecting this Agreement, including the validity thereof, are to be governed and construed in accordance with the laws of the state of Illinois.

21. Notices. Any notice hereunder by either party to the other shall be given in writing by personal delivery or certified mail, return receipt requested. If addressed to Employee, the notice shall be delivered or mailed to Employee at the address specified under Employee’s signature hereto or such other address which Employee has advised the Company to send notice to, or if addressed to the Company, the notice shall be delivered or mailed to the Company at its executive offices. A notice shall be deemed given, if by personal delivery, on the date of such delivery or, if by certified mail, on the date shown on the applicable return receipt.

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IN WITNESS WHEREOF, the Company has caused the Agreement to be signed by its officer pursuant to the authority of its Board, and Employee has executed this Agreement, as of the day and year first written above.


XXXXXXX CABLE, INC.			XXXXXXX XXXXX

By	/s/ G. Xxxx Xxxxxx		/s/ Xxxxxxx Xxxxx
	Its:	President/Chief Executive Officer	Xxxxxxx Xxxxx

Date:	December 20, 2013		Date:	December 20, 2013

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Amended and Restated Employment Agreement

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