Exhibit 10(ee)
ESSEX ELECTRICAL PRODUCTS
May 13, 2003
Xx. Xxxxx X. Xxxx
0000 Xxxx Xxxxxx
Xx. Xxxxx, XX 00000-0000
Dear Xxxxx:
Your efforts and commitment are important to the continued operations of
Essex Electric Inc. ("Essex"). The purpose of this letter agreement is to
acknowledge and set forth the terms and conditions of your employment as the
Senior Vice President -Finance of Essex. All terms and conditions set forth
herein shall be effective as of the consummation of the sale (the "Sale") of
certain assets and securities relating to the Superior Telecommunications Inc.
("STI") Electrical Group to Alpine Holdco Inc. ("Holdco") pursuant to the terms
of that Purchase Agreement entered into as of the 31st day of October, 2002 by
and among Superior TeleCom Inc., STI, Essex International Inc., Essex Group,
Inc. ("Essex Group"), The Alpine Group, Inc. ("Alpine") and Holdco, as amended.
1. Duties and Responsibilities. As the Senior Vice President -Finance of
Essex, you will report to the President of Essex and will have such
responsibilities, duties and authority as are from time to time assigned to you
by the President of Essex. Also, you will have such responsibilities, duties and
authority in respect of Holdco and Alpine, as are from time to time assigned to
you by the Chairman and Chief Executive Officer of Holdco and Alpine, and will
report to such executive in respect to the performance of your Holdco and Alpine
related duties and responsibilities hereunder. You will devote your full
business time, energy and skill in the performance of your duties hereunder and
will perform faithfully and efficiently such duties.
2. Base Salary. As compensation for your services, Essex will pay you an
annual base salary of $248,000 in accordance with Essex's usual payroll
practices. Your base salary will be reviewed annually in accordance with Essex's
standard practices and is subject to merit increases as determined by Essex in
its sole discretion.
3. Annual Bonus. While you are employed by Essex, in addition to your base
salary, you will be eligible to receive an annual bonus, if earned, based
primarily upon the applicable performance annual incentive program at Essex and,
in the discretion of Holdco, based upon performance relative to Holdco. The
bonus will be determined annually at the same time bonuses are determined for
other officers of Essex and will be payable at the same time and in the same
manner as bonuses are paid to such other officers of Essex. Your annual target
bonus will be 40% of base salary.
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May 13, 2003
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4. Employee Benefits. While you are employed by Essex, you will be
entitled to participate in all benefits and fringes (including, without
limitation, health, vacation, life insurance and retirement plans) as are
generally provided by Essex in accordance with the terms and conditions thereof
in effect from time to time, subject to the satisfaction of any eligibility
requirements. While you are employed by Essex, you will be entitled to a monthly
automobile cash allowance of $800.00, payable in the first pay period of each
month.
5. Stock Options. You will be considered for grants of stock options at
the sole discretion of the Executive Compensation and Organization Committee of
the board of directors of Alpine.
6. Retention Bonus. Essex will pay to you a retention bonus equal to
$40,000, subject to the terms and conditions set forth in this paragraph 6.
(a) Your retention bonus will be payable in two installments. The
first installment will be $20,000, payable as soon as practicable following July
30, 2003, provided that you remain continuously employed through such date. The
second installment will be $20,000, payable as soon as practicable following
February 28, 2004, provided that you remain continuously employed through such
date.
(b) If you are terminated by Essex without Cause after the date this
letter is accepted and returned to me but before payment of both installments of
the retention bonus, you will receive any remaining installments of your
retention bonus as soon as practicable following the date the installment would
have otherwise been paid had your employment not terminated.
(c) If you terminate your employment for any reason, are terminated
for Cause or if your employment is terminated due to your death, disability or
retirement prior the payment of any installment of your retention bonus, you
will not be entitled to receive any remaining installments of the retention
bonus. In addition, if you are terminated by Essex for Cause after the date this
letter is accepted and returned to me or if you terminate your employment for
any reason prior to February 28, 2004, you will be required to return to Essex
any installment of the retention bonus you have received. You will return any
such installment within 10 business days following such termination date.
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May 13, 2003
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(d) The retention bonus payable hereunder is a special incentive
payment to you and will not be taken into account in computing the amount of
salary or compensation for purposes of determining any bonus, incentive,
pension, retirement, death or other benefit under any other bonus, incentive
pension, retirement, insurance or other employee benefit plan of Essex, unless
such plan or agreement expressly provides otherwise. The retention bonus is in
addition to any amount or benefit payable under any such other agreement or plan
unless such agreement or plan expressly provides otherwise.
7. Termination of Employment.
(a) At all times, your employment with Essex is "at-will" which
means that employment with Essex may be terminated at any time by either you or
Essex with or without Cause, subject only to the entitlements, liabilities and
obligations set forth in paragraphs 6, 7 and 8 hereof. If you are terminated by
Essex without Cause then, in addition to the payment of any retention bonus
installment under paragraph 6(b), you will be entitled to receive a lump sum
cash payment equal to 1/3 of your base salary in effect immediately prior to
your termination times the number of years of employment hereunder. For this
purpose calendar 2002 is the first year of employment and any partial year
thereafter will count as a full year.
(b) In the event that Employee's employment is terminated after
December 31, 2004 by mutual agreement, the Employer will consider in good faith
the appropriateness, if any, of a supplemental termination benefit to Employee,
based solely upon the discretion of the Employer, after considering such matters
as overall company financial performance, Employee's performance and other
relevant matters.
(c) If your employment is terminated for reasons other than Cause,
the Company will continue to provide, at its expense, health insurance and
related benefits for a period of 18 months following termination.
8. Change in Control Payment. If your employment with Essex is terminated
without Cause or you terminate your employment with Essex for Good Reason in
each instance at any time within the six-month period commencing on the date of
a Change in Control, Essex will pay you, within 30 days of such termination, a
lump sum cash payment equal to one and a half times the sum of your base salary
in effect immediately prior to your termination.
9. Restrictive Covenants.
(a) Non-Competition. So long as you are employed by Essex under this
letter agreement and for the one year period following your termination of
employment for any reason (the "Restricted Period"), you will not, directly or
indirectly, without the prior written consent of Alpine, enter into Competition
with the Company, Alpine or any of their respective affiliates (the "Employer").
"Competition" means participating, directly or indirectly, as an individual
proprietor, partner, stockholder, officer, employee, director, joint venturer,
investor, lender, consultant or in any capacity whatsoever with or for any
electrical wire manufacturer.
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(b) Confidentiality. While you are employed by Essex and thereafter,
you will hold in a fiduciary capacity for the benefit of the Employer all secret
or confidential information, knowledge or data relating to the Employer, and
their respective businesses, which will have been obtained by you during your
employment by Essex (including periods of prior employment) and which will not
be or become public knowledge (other than by acts by you or your representatives
in violation of this letter agreement). You will not, except as may be required
to perform your duties hereunder or as may otherwise be required by law or legal
process, without limitation in time or until such information will have become
public or known in the Employer's industry (other than by acts by you or your
representatives in violation of this letter agreement), communicate or divulge
to others or use, whether directly or indirectly, any such information,
knowledge or data regarding the Employer, and their respective businesses.
(c) Non-Solicitation of Customers. During the Restricted Period, you
will not, directly or indirectly, influence or attempt to influence customers or
suppliers of the Employer to divert their business to any competitor of the
Employer.
(d) Non-Solicitation of Employees. You recognize that you possess
and will possess confidential information about other employees of the Employer
relating to their education, experience, skills, abilities, compensation and
benefits, and inter-personal relationships with customers of the Employer. You
recognize that the information you possess and will possess about these other
employees is not generally known, is of substantial value to the Employer in
developing its business and in securing and retaining customers, and has been
and will be acquired by you because of your business position with the Employer.
You agree that, during the Restricted Period, you will not, directly or
indirectly, solicit or recruit any non-administrative or non-clerical employee
of the Employer for the purpose of being employed by you or by any competitor of
the Employer on whose behalf you are acting as an agent, representative or
employee and that you will not convey any such confidential information or trade
secrets about other employees of the Employer to any other person.
(e) Injunctive Relief. It is further expressly agreed that the
Employer will or would suffer irreparable injury if you were to compete with the
Employer in violation of this letter agreement and that the Employer would by
reason of such Competition be entitled to injunctive relief in a court of
appropriate jurisdiction and you further consent and stipulate to the entry of
such injunctive relief in such court prohibiting you from competing with the
Employer in violation of this letter agreement.
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May 13, 2003
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(f) Survival of Provisions. The obligations contained in this
paragraph 9 will survive the termination or expiration of your employment with
Essex and will be fully enforceable thereafter. If it is determined by a court
of competent jurisdiction in any state that any restriction in this paragraph 9
is excessive in duration or scope or extends for too long a period of time or
over too great a range of activities or in too broad a geographic area or is
unreasonable or unenforceable under the laws of that state, it is the intention
of the parties that such restriction may be modified or amended by the court to
render it enforceable to the maximum extent permitted by the law of that state
or jurisdiction.
10. Certain Definitions. For purposes of this letter agreement, the
following terms will have the following meanings:
(a) "Change in Control" means the consummation of any of the
following: (i) the sale of all or substantially all of the assets of Essex to an
Unrelated Entity; (ii) the sale of all of the outstanding voting securities of
an entity holding all or substantially all of the assets of Essex to an
Unrelated Entity; or (iii) the merger or consolidation of Essex into an
Unrelated Entity.
(b) "Unrelated Entity" means an entity (i) with respect to which 35%
or more of such entity is not owned, directly or indirectly, by Xxxxxx X.
Xxxxxx, Holdco, Essex, Alpine, any of their majority-owned subsidiaries or the
holders of the outstanding voting securities of Alpine immediately prior to the
time of the determination of whether there has occurred an Change in Control; or
(ii) which is not an employee benefit plan (or related trust) of Essex, Holdco,
Alpine or any of their majority-owned subsidiaries.
(c) "Good Reason" means the material diminution in your duties or
responsibilities, excluding for this purpose isolated and inadvertent actions
not taken in bad faith and remedied by Essex promptly after Essex receives
notice from you. Notwithstanding the foregoing, a material diminution in your
duties or responsibilities will be deemed to have not occurred if you continue
to be responsible for the financial affairs of any of Essex or Holdco or Alpine.
(d) "Cause" means (with regard to your termination of employment
with Essex): (i) your gross negligence or willful misconduct with regard to
Essex or its assets; (ii) misappropriation or fraud with regard to Essex or its
assets (other than good-faith expense account disputes); (iii) conviction of, or
the pleading of guilty or nolo contendere to, a felony or criminal offense
punishable by a term of imprisonment (other than a traffic violation) involving
Essex; or (iv) your refusal to perform services (for any reason other than
illness or incapacity) or materially unsatisfactory performance of your duties
for Essex.
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(e) "Disability" means a disability which would qualify as such
under Essex's long-term disability plan.
11. Miscellaneous.
(a) Governing Law. This letter agreement will be governed by the
laws of the State of New Jersey (without reference to rules relating to
conflicts of law).
(b) No Guarantee of Employment. Nothing with respect to this letter
agreement will be held or construed to create a contract of employment for a
definite term or otherwise alter the ability of Essex to terminate the
employment relationship for any reason or no reason.
(c) Assignment. The benefits payable under this letter agreement
will not be subject to alienation, transfer, assignment, garnishment, execution
or levy of any kind, and any attempt to cause any benefits to be so subjected
will not be recognized.
(d) Successors. Essex will require any successor or assignee,
whether direct or indirect, by purchase, merger, consolidation or otherwise, to
all or substantially all the business or assets of Essex, expressly and
unconditionally to assume and agree to perform Essex's obligations under this
letter agreement, in the same manner and to the same extent that Essex be
required to perform if no such succession or assignment had taken place. In such
event, the term "Essex" as used here, means Essex and any successor or assignee
to the business or assets which by reason hereof becomes bound by the terms and
provisions of this letter agreement.
(e) Entire Agreement. This letter agreement contains the entire
understanding between you and Essex with respect to your employment by Essex and
supersedes any prior agreements between Essex and you with respect thereto
(including, without limitation, the Prior Agreement).
(f) Release of Prior Agreement. Essex has (and you acknowledge that
Essex has) assumed all obligations under the employment agreement between you
and Essex Group, Inc. (the "Prior Agreement") and agreed to perform the Prior
Agreement in the same manner and to the same extent that Essex Group would be
required to perform it if the Sale did not occur. You hereby agree and
acknowledge that the payments and benefits set forth in this letter represent
adequate consideration for the cancellation of the Prior Agreement. You hereby
fully and unconditionally release and discharge all claims and causes of action
which you or your heirs, personal representatives, or assigns ever had, now
have, or hereafter may have against the Employer and related parties (including
any predecessors or successors) and when acting as such, their respective
officers, directors, employees, counsel, agents, and stockholders, (in each
case, past, present, or as they may exist at any time after this date) under the
Prior Agreement or as a result of the cancellation of the Prior Agreement.
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(g) Amendment. This agreement may not be altered, amended, modified
or terminated except in a writing executed by Essex and you.
(h) Withholding. Essex may withhold from any and all amounts payable
to you such federal, state and local taxes as may be required to be withheld
pursuant to any applicable laws or regulations.
* * *
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We thank you for your commitment to Essex. In order to accept the terms
described in this letter agreement and for this letter agreement to be valid and
binding, please sign this letter and return it to me at the company's offices in
New Jersey no later than five business days from the date hereof.
Sincerely,
ESSEX ELECTRIC INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
AGREED AND ACCEPTED:
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Date: 5-13-03
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