AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.10
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as
of this 30th day of December, 2008 (the “Effective Date”) by and between XXXXXXX CABLE, INC., a
Delaware corporation (the “Company”), on the one hand, and G. XXXX XXXXXX (the “Employee”), on the
other hand. (The Company and the Employee are sometimes referred to herein together as the
“Parties”.)
WITNESSETH
WHEREAS, the Company is engaged in the business of manufacturing wire and cable products (the
“Business”);
WHEREAS, the Company and the Employee are parties to that certain Employment Agreement dated
December 30, 1999, amended and restated effective September 1, 2006 (the “Original Agreement”),
which the Parties desire to amend and restate in its entirety on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Restatement of the Original Agreement. The Parties do hereby amend and restate the
Original Agreement in its entirety as set forth herein. Upon the Effective Date, the Original
Agreement shall be superseded in its entirety and of no further force or effect.
2. Employment. The Company hereby agrees to employ the Employee for the Term of this
Agreement (as defined in Section 5 hereof) and the Employee hereby accepts such employment.
3. Position and Duties.
(a) Position. During the Term, the Employee shall serve as the President and Chief
Executive Officer of the Company, overseeing all day to day operations of the Company and any
person or entity that directly, or through one or more intermediaries is controlled by the Company
(collectively, the “Affiliates”) and shall have and perform the duties, responsibilities and
authority commensurate with such position, which are enumerated from time to time by the Company’s
Board of Directors. Such duties, responsibilities and authority shall include, but not be limited
to, the following:
(i) the authority to employ (and terminate), any and all Vice Presidents and other
subordinate officers (of whatever position), any general managers, managers, supervisors and
other employees of the Company or its Affiliates as the Employee shall deem necessary or
appropriate for the conduct of the Business and its Affiliates; to delegate to such
employees such authority as he shall determine; and to determine the compensation to be paid
to any such employees, all consistent with the employee policies and
procedures promulgated by the Company’s Board of Directors; and
(ii) the authority to make or otherwise authorize expenditures by and to contract
liabilities for the Company and the Affiliates in the ordinary course of business; and
(iii) the authority to make any and all decisions of a material nature for the Company
and the Affiliates subject only to the approval of the Company’s Board of Directors in the
case of decisions fundamentally altering the Company’s or any Affiliate’s structure,
management or the way it conducts business or otherwise of an extraordinary nature.
(b) Efforts. The Employee shall devote his full working time, diligent efforts and
attention (except for permitted vacation periods and periods of illness or other incapacity) to the
business and affairs of the Company as may be required to perform his duties and responsibilities
in a diligent and businesslike manner.
(c) Board of Directors Seats. During the Term, the Employee shall be entitled to be
nominated to fill one (1) seat on the Company’s and each Affiliate’s Board of Directors. Employee
may not be removed from the Company’s or an Affiliate’s Board of Directors other than for Cause (as
defined in Section 5(b) hereof).
4. Salary and Benefits.
(a) Base Salary. During the Term, the Company shall pay to the Employee a minimum base
salary of $550,000 per year. The Company shall pay such salary in equal bi-weekly installments on
the Company’s regular pay days. Regular installments of base salary shall be paid less all
applicable taxes, social security payments and other items that the Company is required by law to
withhold or deduct therefrom.
(b) Automatic Annual Raises. During the Term, the Employee’s base salary shall be
increased, effective as of each anniversary of the Effective Date, by a percentage amount equal to
the percentage increase in the Chicago area Consumer Price Index as reported by the U.S. Department
of Labor.
(c) Merit Raises. The Board of Directors of the Company may, in its absolute and sole
discretion, increase the salary payable to Employee for merit.
(d) Performance Bonuses. During each year of the Term, the Employee shall be entitled
to receive cash performance bonuses in an amount up to 100% of the Employee’s base salary, as
determined by the Company’s Board of Directors based upon the attainment of performance goals
conveyed to the Employee. The cash performance bonus may be increased in any year in the discretion
of the Compensation Committee.
(e) Employee Benefits. In addition to the compensation described above, the Company
will provide or offer for the Employee’s participation such benefits (other than bonus, incentive
compensation and severance benefits) as are generally provided or offered by the Company to its
other similarly positioned executive officers, including, without limitation, retirement benefits,
health/major medical insurance and welfare benefits, sick days and other fringe benefits
(collectively, “Benefits”), if and to the extent that the Employee is eligible to participate in
accordance with the terms of the applicable Benefit plan or program generally. These Benefits shall
include:
(i) group health, life and disability insurance (to the extent offered to similarly
positioned executive officers);
(ii) participation in any Company sponsored retirement savings or pension plan (to the
extent such plans are in existence and participation is offered to similarly positioned
executive officers);
(iii) participation in all stock or stock option plans (to the extent such plans
exist);
(iv) use of a company car comparable to the car presently being driven by the Employee;
(v) business expense allowances;
(vi) paid vacation accruing at the rate of four (4) weeks per year;
(vii) paid religious and other holidays to the extent provided under the Company’s
personal leave policies;
(viii) health and country club membership; and
(x) such other perquisites as the Company and the Employee shall agree.
(f) Life and Supplemental Disability Insurance. In addition to the Benefits herein
provided for, the Company shall purchase and maintain in full force and effect one or more policies
of term insurance on the life of the Employee, with benefits payable as the Employee may direct, in
the aggregate amount of not less than $1,000,000. The Employee agrees to submit to standard medical
exams for the purpose of enabling the Company to secure a Company owned insurance policy on the
life of the Employee. In addition, the Company shall purchase and maintain in full force and effect
one or more policies of supplemental disability insurance, with benefits consistent with those
provided to the Employee as of the date hereof.
(g) Equity and Option Grants. In addition to all other salary and benefits herein
provided, the Company hereby agrees that Employee shall be entitled to participate in restricted
stock and stock option plans established for the benefit of the Company’s employees.
(h) Expense Reimbursement. The Company shall reimburse the Employee for all reasonable
business expenses properly incurred by the Employee in the ordinary course of performing the
Employee’s duties and responsibilities hereunder, subject to the Company’s normal and customary
practices and policies as are in effect from time to time with respect to travel, entertainment and
other business expenses (including the Company’s reasonable
requirements with respect to prior approval, reporting and documentation of such expenses).
5. Term and Termination.
(a) Term. Subject to the rights of termination set forth below, the Term of the
Employee’s employment under this Agreement shall be for a rolling three (3) year period (i.e.,
upon completion of each day of the Employee’s employment, the term of his employment automatically
shall be extended for one additional day), commencing on the Effective Date (the “Term”).
(b) Termination for Cause. The Company may terminate the Employee’s employment under
this Agreement at any time upon written notice for “Cause.” For the purposes of this Agreement,
Cause shall mean:
(i) the gross neglect or willful failure by the Employee to perform his duties and
responsibilities in all material respects as set forth hereunder, after a written demand for
substantial performance is delivered to the Employee by the Company’s Board of Directors
which demand specifically identifies the manner in which the Company’s Board of Directors
believes that the Employee has not so performed his duties and which demand is not met
within thirty (30) days of its delivery to Employee;
(ii) any act of fraud or embezzlement by the Employee in connection with the Company or
its affiliates;
(iii) a willful and material breach of this Agreement by the Employee which the
Employee fails to cure within thirty (30) days of the Employee’s receipt of written notice
of such breach; or
(iv) the Employee’s conviction or entering into a plea of nolo contendere to (A) a
crime involving moral turpitude; or (B) any other crime materially impairing or materially
hindering the Employee’s ability to perform his duties for the Company.
(c) Voluntary Termination By The Employee With Good Reason. The Employee may, at any
time within 90 days of the occurrence of any event which constitutes “Good Reason” upon written
notice, terminate his employment under this Agreement with “Good Reason”.
(i) For the purposes of this Agreement, “Good Reason” shall mean without the prior
written consent of the Employee: (A) a material reduction in the base compensation of the
Employee, other than an insubstantial and inadvertent failure not occurring in bad faith; or
(B) a significant reduction in the responsibilities and/or duties of the Employee the result
of which is that the Employee (1) shall no longer have control or authority over the
management of the Company or the Affiliates, or (2) shall have responsibilities which are
not commensurate with the historical responsibilities of the President and Chief Executive
Officer of the Company; or (C) a change of location of the Employee’s office which is
thirty-five (35) miles or more from the office where the Employee was located as of the
Effective Date; or (D) a Change of Control (as herein defined); or (E) any willful failure
or willful breach by the Company (not covered by any of the clauses
(A) through (D) above) of any material obligations of this Agreement. 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 (A) through (E) above.
For the purposes of this Agreement, a “Change of Control” shall mean that any of the following has
occurred:
(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”)).
For the avoidance of doubt, no Change of Control shall be deemed to occur if any of the events
enumerated above occur as a result of (i) the 144A equity offering and private placement of equity
securities with Xxxxxxxx, Xxxxxxxx & Xxxxxx, Co. as initial purchaser and placement agent (the
“144A offering”); (ii) any issuance of equity securities pursuant to the shelf registration
statement filed in connection with the 144A offering; (iii) any changes associated with the listing
of the Company’s stock on the NASDAQ stock market; or (iv) an initial public offering or shelf
registration of the Company’s stock.
For the further avoidance of doubt, the Employee’s decision not to terminate his employment within
90 days after the occurrence of any event which constitutes “Good Reason” shall not preclude or
otherwise constitute a waiver of the Employee’s right to terminate his employment within 90 days of
any other event which constitutes “Good Reason.”
(d) Voluntary Termination By The Employee Without Good Reason. The Employee may,
at any time upon three (3) months prior written notice, terminate his employment under this
Agreement without Good Reason.
(e) Termination on Death or Permanent Disability. The Employee’s employment under this
Agreement shall terminate upon the Employee’s death or Disability. For purposes of this Agreement,
“Disability” shall mean the inability of the Employee to substantially perform the Employee’s
duties and responsibilities to the Company by law, by reason of a physical or mental disability or
infirmity (i) for a total of one hundred twenty (120) days in any consecutive twelve (12) month
period or (ii) at such earlier time as the Employee submits or the Company receives satisfactory
medical evidence that the Employee has a physical or mental disability or infirmity which will
likely prevent him from returning to the performance of the Employee’s work duties for four (4)
months or longer. In the event of any dispute regarding the determination of the Employee’s
Disability, such determination shall be made by a physician selected by the Company, at the
Company’s sole expense, in consultation with the Employee’s primary treating physician; provided,
however, that the Employee’s Disability shall be conclusively presumed if such determination is
made by an insurer providing disability insurance coverage to the Employee or the Company in
respect of the Employee.
6. Severance Benefits. Upon termination of the Employee’s employment under this
Agreement, the Employee shall be entitled to receive the following termination benefits in lieu of
all other considerations and payments under this Agreement and all claims for damages and remedies
based on a claim of wrongful discharge, after receipt of which the rights and obligations of the
parties hereunder shall become void and of no further force and effect; provided, however, that the
Employee shall remain obligated to abide by the restrictive covenants set forth in Section 9 of
this Agreement until such time as they would otherwise expire.
(a) Termination for Cause or Without Good Reason. If the Employee’s employment is
terminated for Cause by the Company in accordance with Section 5(a) or is terminated voluntarily by
the Employee in accordance with Section 5(d), then the following severance benefits shall be due:
(i) base salary shall be paid through such date of termination;
(ii) any bonus that may otherwise have become due for the fiscal year prior to the
year in which the Employee’s employment is terminated; and
(iii) all benefits, including all life insurance policies maintained pursuant to
Section 4(e) above, may be terminated or canceled by the Company at any time from and after
the last day of employment, subject only to the Employee’s “COBRA” rights to continue
health insurance and his right to vested funds in the Company sponsored retirement savings
and pension plans.
(b) Termination by Death or Disability. If the Employee’s employment is terminated by
the Company upon the death or Disability of the Employee, then the Company shall pay the Employee
(or his estate or representative) in one lump sum within 30 days of such termination:
(i) 12 months’ base salary; and
(ii) all accrued and unpaid bonuses for the year immediately preceding the termination
of Employee’s employment; and
(iii) a bonus payment in an amount equal to one (1) times the average annual bonus paid
to the Employee for the two (2) complete years immediately preceding Employee’s death or
Disability.
In addition:
(x) all options and restricted stock shall immediately vest;
(y) all group health, life and disability insurance benefits and health and country
club memberships shall continue for a period of 12 months from the date of termination. In
the case of termination by reason of the death of the Employee, then such group health,
life and disability insurance benefits shall continue as aforesaid for the benefit of any
dependents who survive him; and
(z) all policies of insurance on the life of the Employee maintained by the Company
pursuant to Paragraph 4(f), above, shall (except in the case of termination by reason of
the Employee’s death) be assigned to the Employee, without charge (except for any
applicable withholding taxes), effective on the last day of employment, and thereafter, the
Company shall have no further obligation to maintain those policies or to pay additional
premiums thereon.
(c) Wrongful Discharge or Termination for Good Reason. If the Employee’s employment is
terminated by the Company other than for Cause or by reason of death or Disability, or if the
Employee’s employment is terminated by the Employee for Good Reason, then the following severance
benefits shall be due and payable in one lump sum:
(i) an amount equal to three (3) times the Employee’s base salary (i.e., thirty-six
(36) months base salary); and
(ii) an amount equal to three (3) times the Employee’s average annual bonus for the two
(2) complete years immediately preceding the termination of the Employee’s employment.
In addition:
(x) all options and restricted stock shall vest immediately (to the extent not
previously vested) without regard to whether or not any of the conditions specified therein
have been achieved;
(y) all group health, life and disability insurance benefits and health and country
club memberships shall continue for thirty-six (36) months; and
(z) the Company shall convert all policies of insurance on the life of the Employee
that are required to be maintained by the Company pursuant to Paragraph 4(e), above, into
fully paid, term policies; shall promptly pay in full the premiums then due; and shall
assign such policies to the Employee, without charge (except for any applicable income taxes
which the Employee may be liable for), effective on the last day of employment.
The benefits provided pursuant to Section 6(c)(iv) that are not non-taxable medical
benefits, “disability pay” or “death benefit” plans within the meaning of Treasury
Regulation Section 1.409A-1(a)(5) or are not medical benefits provided during the maximum
period during which the Employee would be entitled to continuation coverage under COBRA
shall be treated as follows: (i) the amount of such benefits provided during one taxable
year shall not affect the amount of such benefits provided in any other taxable year, except
that to the extent such benefits consist of the reimbursement of expenses referred to in
Section 105(b) of the Code, a limitation may be imposed on the amount of such reimbursements
over some or all of the 36-month period, as described in Treasury Regulation Section
1.409A-3(i)(iv)(B), (ii) to the extent that any such benefits consist of reimbursement of
eligible expenses, such reimbursement must be made on or before the last day of the calendar
year following the calendar year in which the expense was incurred and (iii) no such benefit
may be liquidated or exchanged for another benefit.
(d) Shareholder Approval of Severance Benefits. The Company shall use its best efforts
to obtain shareholder approval that complies with section 280G(b)(5)(B) and the regulations
thereunder for the portion of the severance benefits payable under Section 6 of this Agreement
which would otherwise be subject to excise tax under section 4999 of the Code.
(e) Limits on Severance Payments. Anything in this Agreement to the contrary
notwithstanding, the following restrictions shall apply:
(i) In the event that it shall be determined that any payment or distribution from the
Company, any affiliate, or trusts established by the Company or by any affiliate to or for
the benefit of the Employee (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, and with a “payment” including,
without limitation, the vesting of an option or other non-cash benefit or property) (a
“Payment”) would be nondeductible by the Company for Federal income tax purposes because of
section 280G of the Code, or any successor provision, then the aggregate present value of
amounts payable or distributable to or for the benefit of the Employee pursuant to this
Agreement (“Agreement Payments”) shall be reduced (but not below zero) to the Reduced
Amount. For purposes of this paragraph, the “Reduced Amount” shall be an amount expressed in
present value which maximizes the aggregate present value of Agreement Payments without
causing any Payment to be nondeductible because of said section 280G of the Code. The
determination to be made hereunder shall be made within twenty (20) days after the date of
termination by the accounting firm that is then acting as auditor for the Company (the
“Accounting Firm”), which shall provide detailed calculations thereof to the Company and to
the Employee, provided, however, that the Employee shall elect which and how much of the
Agreement Payments shall be reduced
consistent with such calculations. The determination to be made by the Accounting Firm
shall be binding upon the Company and the Employee unless each of the following occurs: (i)
within fifteen (15) days of the date of such determination, either party gives to the other
party a written legal opinion from a nationally recognized law firm stating that there is a
substantial possibility that the Internal Revenue Service will reach a conclusion different
from that reached by the Accounting Firm; (ii) either party, within fifteen (15) days of the
date of such letter, seeks a private letter ruling from the Internal Revenue Service; and
(iii) the Internal Revenue Service issues a private letter ruling reaching a conclusion
different from that reached by the Accounting Firm. A private letter ruling by the Internal
Revenue Service issued under these circumstances shall be binding upon the Company and the
Employee. Present value, for purposes of the calculations under this paragraph 7(d), shall
be determined in accordance with section 280G(d)(4) of the Code. Notwithstanding anything
in this Section 6(e) to the contrary, to the extent any of the payments or benefits provided
under the Plan are reduced in accordance with the provisions of this section, payments and
benefits that do not constitute “deferred compensation” within the meaning of Section 409A
of the Code shall be reduced first.
(ii) As a result of uncertainty in the application of section 280G of the Code at the
time of any initial determination by the Accounting Firm hereunder, it is possible that
Agreement Payments will have been paid or distributed by the Company which should not be so
paid or distributed (“Overpayment”) or that additional Agreement Payments which were not
paid or distributed by the Company could have been so paid or distributed (“Underpayment”),
in each case, consistent with the calculation of the Reduced Amount hereunder. In the event
that the Accounting Firm determines that an Overpayment has been made, any such Overpayment
shall be treated for all purposes as a loan to the Employee which the Employee shall repay
to the Company promptly upon receiving notice of such Overpayment together with interest at
the applicable federal rate provided for in section 7872(f)(2) of the Code; provided,
however, that no amount shall be payable by the Employee to the Company (or if paid by the
Employee to the Company shall be returned to the Employee) if and to the extent such payment
would not reduce the amount which is nondeductible under section 280(g) of the Code or which
is subject to taxation under section 4999 of the Code. In the event that the Accounting Firm
determines that an Underpayment has occurred, any such Underpayment shall be promptly paid
by the Company to or for the benefit of the Employee together with interest at the
applicable federal rate provided for in section 7872(f)(2) of the Code.
(f) Calculation of Severance Payments. For the avoidance of doubt, for purposes of
calculating severance benefits pursuant to this Section 6, the Employee’s average annual bonus for
the two (2) complete years immediately preceding the termination of the Employee’s employment shall
not, under any circumstances, include the special payment of $1,455,362 received by the Employee in
2004.
7. Relationship Created. The relationship created by this Agreement is that of
employer and employee and nothing contained in this Agreement shall be construed in any way as
creating any partnership, joint venture or other relationship between the parties. Nothing
contained in this Agreement shall be construed as granting Employee any right to bind or
obligate the Company in any manner not herein granted, without the express written consent of
the Company.
8. Payment of Undisputed Amounts. If there is a dispute between the parties with
respect to any amount claimed to be due hereunder, any portion that is not disputed shall be paid
by the obligor to the payee. Any such partial payment shall not, however, constitute a waiver by
the recipient of such payment of any other rights.
9. Restrictive Covenants.
(a) Non-Competition. Employee agrees that during his employment and for a one (1) year
period thereafter (other than if wrongfully terminated by the Company, terminated with Good Reason
by the Employee or if the Company fails to make any payment or perform any obligation owned to
Employee to Employee required to be made hereunder, in which case this restrictive period shall
lapse immediately) (the “Restrictive Period”), he will not, directly or indirectly, engage,
participate, or have any interest or be involved in any capacity, whether as an owner, agent,
stockholder (excluding ownership of not more than 5% of the outstanding shares of a publicly held
corporation if such ownership does not involve, and neither Employee nor any of his respective
affiliates otherwise has, any managerial or operational responsibility in respect thereof),
officer, director, manager, partner, joint venturer, employee, consultant, advisor, agent or
otherwise, in any business enterprise which is, or shall at any time during the Restrictive Period
be, directly or indirectly engaged in the business of manufacturing wire and cable in the United
States and in any other countries or territories where the Company sells its products.
(b) Non-Disclosure of Confidential Information.
(i) Employee acknowledges that it is the policy of the Company to maintain as secret
and confidential all valuable and unique information heretofore or hereafter acquired,
developed or used by the Company relating to the business, operations, employees and
customers of the Company, which information includes technical knowledge, know-how or trade
secrets and information concerning the operations, sales, personnel, suppliers, customers,
costs, profits, markets, pricing policies, Confidential Materials (as hereinafter defined),
and the results of any investigations or experiments of the Company (such information is
hereinafter referred to as “Confidential Information,” provided that Confidential
Information shall not include any of the foregoing items which are in the public domain or
which are available from third-party sources without any violation of this Agreement).
Employee recognizes that the services to be performed by Employee are special and unique,
and that by reason of his duties he will acquire Confidential Information. Employee
recognizes that all such Confidential Information is the sole and exclusive property of the
Company. In consideration of the Company’s entering into this Agreement, Employee agrees
that:
(A) he shall never for so long as such information is valuable and unique (but
in no case for longer than five (5) years following the termination of Employee’s
employment by the Company), directly or indirectly use, publish, disseminate or
otherwise disclose any Confidential Information obtained during his employment by the
Company without the prior written consent of the Company’s
Board of Directors, it being understood that this subparagraph shall survive the
term of this Agreement;
(B) during the term of his employment by the Company, he shall exercise all due
and diligent precautions to protect the integrity of the Company’s customer lists,
mailing lists and sources thereof, statistical data and compilations, agreements,
contracts, manuals or other documents and any and all other materials embodying any
Confidential Information (the “Confidential Materials”) and, upon termination of his
employment hereunder, or such earlier time as the Company may so request, he shall
immediately return to the Company all such Confidential Materials (and copies
thereof) then in his possession or control;
(C) Employee agrees that he will at all times comply with all security
regulations (1) in effect from time to time at the Company’s premises and (2) in
effect for materials belonging to the Company; and
(D) Employee agrees that the provisions of this subsection (b) are reasonably
necessary to protect the proprietary rights of the Company in the Confidential
Information and its trade secrets, good will and reputation.
(c) Severability. In the event a court of competent jurisdiction determines that the
provisions of the covenants in this Section 9 are excessively broad as to duration, geographic
scope or activity, it is expressly agreed that the covenants contained in this Section 9 shall be
construed so that the provisions which the court does not deem excessively broad shall not be
affected, but shall remain in full force and effect, and any such overly broad provisions shall be
deemed, without further action or the part of any party, to be modified, amended and or limited,
but only to the extent necessary to render the same valid and enforceable in such jurisdiction.
(d) Remedies. Employee acknowledges that any breach of the provisions of this Section
9 can cause irreparable harm to the Company for which the Company would have no adequate remedy at
law. In the event of a breach or threatened breach by Employee of any of such provisions, in
addition to any and all other rights and remedies it may have under this Agreement or otherwise,
the Company may immediately seek any judicial action deemed necessary, including, without
limitation, temporary and preliminary injunctive relief.
10. Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when delivered personally to the recipient, one day after being sent to the
recipient by reputable overnight courier service (charges prepaid) or three days after being mailed
to the recipient by certified or registered mail, return receipt requested and postage prepaid.
Such notices, demands and other communications shall be sent to the recipients at the addresses
indicated below:
Notices to Employee:
Xx. Xxxx Xxxxxx
[Address]
Xx. Xxxx Xxxxxx
[Address]
with a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxx & Samotny, Ltd.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxx & Samotny, Ltd.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Notices to the Company:
Xxxxxxx Cable, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Xxxxxxx Cable, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
with a copy (which shall not constitute notice) to:
Winston & Xxxxxx LLP
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Winston & Xxxxxx LLP
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
or such other addresses or to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party. Any notice under this Agreement shall be
deemed to have been given when so delivered or mailed.
11. 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 term (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 11:
(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(c)(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(c) 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(c) 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.
12. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
13. Complete Agreement. This Agreement embodies the complete agreement and
understanding among the parties hereto and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, which may have related to
the subject matter hereof in any way.
14. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
15. Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.
16. Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Employee, the Company and their respective heirs, affiliates
(including, without limitation, the Affiliates) successors and assigns, except that Employee may
not assign his rights or delegate his obligations hereunder without the prior written consent of
the Company. In the event the Company is sold (whether through a sale of assets, merger,
consolidation or otherwise) or is otherwise reorganized, the Company shall cause the acquiring or
surviving person or entity to assume the obligations of the Company under this Agreement as if
though such acquiring or surviving person or entity were an original party hereto. The parties
recognize that the damages which Employee might suffer as a result of the Company’s breach of
this Section 15 are immeasurable and could result in irreparable harm. Accordingly, in
addition to any and all other remedies available to Employee at law or equity, Employee shall be
entitled to enforce this Section 15 through specific performance, temporary and permanent
injunction, and such other equitable remedies as it may choose, without the requirements of posting
bond.
17. Choice of Law. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by, and construed in accordance
with, the laws of the State of Illinois, without giving effect to any choice of law or conflict of
law rules or provisions (whether of the State of Illinois, or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of Illinois. Any and all
actions brought under this Agreement shall be brought in the state or federal court setting in the
County of Xxxx, in the State of Illinois, and neither party shall seek a change of venue in any
such action.
18. Fees and Expenses. In the event that a dispute arises under this Agreement which
is submitted to a court of competent jurisdiction for resolution, or any other legal enforcement or
declaratory action is brought hereunder (whether in the native of arbitration, litigation or
otherwise), the prevailing party in such action or proceeding shall receive, in addition to any
award it receives in the action or proceeding, reimbursement for all reasonable costs and expenses
incurred in such action or proceeding (including appeals therefrom), which reimbursed costs and
expenses shall include, but not be limited to, attorneys’ fees and expenses.
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. Amendment and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of the Company and Employee, and no course of conduct or
failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding
effect or enforceability of this Agreement.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| XXXXXXX CABLE, INC. |
||||
| /s/ X. X. Xxxxxx | ||||
| /s/ G. Xxxx Xxxxxx | ||||
| G. XXXX XXXXXX | ||||
