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EXHIBIT 10.29
EMPLOYMENT AGREEMENT
This agreement (the "Agreement") is made and entered into as of
November 13, 1999 by and between International Wire Group, Inc. ("Employer") and
Xxxxxx X. Xxxxxxxx ("Employee") and fully replaces that certain Employment
Agreement (the "Prior Agreement") dated as of September 25, 1995 between
Wirekraft Industries, Inc. and Employee.
W I T N E S S E T H :
WHEREAS, Employer is a direct wholly-owned subsidiary of International
Wire Holding Company ("International");
WHEREAS, Employee has previously entered into the Prior Agreement,
which Prior Agreement expired by its term on September 24, 1999;
WHEREAS, Employer desires to retain the services of Employee upon the
terms set forth herein; and
WHEREAS, Employee desires to be employed by Employer, to appropriately
memorialize the terms and conditions of such employment.
NOW, THEREFORE, Employee and Employer, in consideration of the
agreements, covenants and conditions herein, hereby agree as follows:
1. BASIC EMPLOYMENT PROVISIONS.
(a) Employment and Term. Employer hereby agrees to employ Employee
(hereinafter referred to as the "Employment") as President and Chief Operating
Officer of Employer (the "Position") and Employee agrees to be employed by
Employer in such Position for a period of three (3) years ending on the 12th day
of November, 2002 (the "Termination Date"), unless terminated earlier as
provided herein (the "Employment Period"). In the event that termination (as
hereinafter provided) has not occurred prior to the last day of the Employment
Period, unless either party shall have given written notice to the contrary at
least thirty (30) days prior to the end of the Employment Period or any
extension thereof, the Employment Period shall annually renew for a successive
one (1) year period until terminated.
(b) Duties. Employee in the Position shall be subject to the direction
and supervision of the Chief Executive Officer of Employer (the "CEO") or his
designee and shall have those duties and responsibilities which are assigned to
him during the Employment Period by the CEO consistent with the Position,
provided that the CEO shall not assign any greater duties or responsibilities to
the Employee than are necessary for the Employee's faithful and adequate
performance of the duties and responsibilities assigned. The parties expressly
acknowledge that the Employee shall devote all of Employee's business time and
attention to the transaction of the Employer's businesses as is
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confidential reasonably necessary to discharge Employee's responsibilities
hereunder. Employee agrees to perform faithfully the duties assigned to the best
of Employee's ability.
2. COMPENSATION.
(a) Salary. During the employment period, Employer shall pay to
Employee a salary as basic compensation for the services to be rendered by
Employee hereunder. The initial amount of such basic compensation shall be Three
Hundred Fifty Thousand Dollars ($350,000) per year. Such salary shall be
reviewed from time to time by the CEO of the Employer and may be increased in
the CEO's sole discretion. Such salary shall accrue and be payable in accordance
with the payroll practices of Employer in effect from time to time. All such
payments shall be subject to deductions and withholdings authorized or required
by applicable law.
(b) Bonus. During the Employment Period, Employee shall be eligible to
receive an annual bonus (payable by the Employer) in an amount to be determined
by the CEO of Employer, in the CEO's sole discretion, of up to sixty-five
percent (65%) of Employee's annual basic compensation as set forth above.
(c) Benefits. During the Employment Period, Employee shall be entitled
to such other benefits as are determined by the CEO, including without
limitation, group life, hospitalization and other insurance, paid vacations,
executive medical supplement, annual executive physical, reimbursement for tax
preparation costs and executive lunches.
(d) Auto Allowance. Employer shall pay Employee an allowance to own and
maintain an automobile in an amount sufficient so that, after the effect of
federal and state income taxes, Employee shall net One Thousand Five Hundred
Dollars ($1,500) per month.
(e) Country Club & Dining Club Membership. Employer shall reimburse
Employee for the initiation fee and monthly dues expense for Employee to belong
to a country club in the St. Louis, Missouri area reasonably acceptable to
Employer and for the initiation fee and monthly dues expense for the Saint Louis
Club, but not for any charges made by Employee at either club, unless such
qualify as reimbursable business entertainment expenses.
3. TERMINATION.
(a) Death or Disability. This Agreement shall terminate automatically
upon the death or total disability of Employee. For the purpose of this
Agreement, "total disability" shall be deemed to have occurred if Employee shall
have been unable to perform the assigned duties due to mental or physical
incapacity for a period of three (3) consecutive months or for any sixty (60)
working days out of a six (6) month consecutive period.
(b) Cause. Employer may terminate the employment of Employee under this
Agreement for Cause. For the purpose of this Agreement, "Cause" shall be deemed
to be fraud, dishonesty, competition with Employer, unauthorized use of any of
Employer's trade secrets or confidential
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information, or failure to properly perform the duties assigned to Employee, in
the reasonable judgment of Employer.
(c) Without Cause. Employer may terminate the employment of Employee
under this Agreement without Cause, subject to the continuing rights of Employee
pursuant to Section 4(c) below.
4. COMPENSATION UPON TERMINATION.
(a) Death or Disability. If the Employment Period is terminated
pursuant to the provisions of Section 3(a) above, this Agreement shall terminate
and no further compensation shall be payable to Employee, except that Employee
or Employee's estate, heirs or beneficiaries, as applicable, shall be entitled,
in addition to any other benefits specifically provided to them or Employee
under any benefit plan, to receive Employee's then current salary for a period
of twelve (12) months from the date the Employment Period terminates.
(b) Termination for Cause or Voluntary Termination by Employee. If the
employment of Employee under this Agreement is terminated for Cause pursuant to
the provisions of Section 3(b) above or if Employee voluntarily terminates
Employee's employment, no further compensation shall be paid to Employee after
the date of termination.
(c) Termination Without Cause. If the Employment of Employee under this
Agreement is terminated pursuant to Section 3(c) above, Employee shall be
entitled to continue to receive from Employer the then current basic
compensation hereunder [which shall not be less than the amount specified in
Section 2(a) above] until the Termination Date, such amount to be paid in
accordance with the payroll practices of Employer, and shall further be entitled
to continue to receive the benefits to which Employee would otherwise be
entitled pursuant to Section 2(c) above, but no other benefits.
5. EXPENSE REIMBURSEMENT. Upon submission of properly documented
expense account reports, Employer shall reimburse Employee for all reasonable
travel and entertainment expenses incurred by Employee in the course of his
employment with Employer.
6. ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, except that this Agreement and all of the provisions hereof may
be assigned by Employer to any successor to all or substantially all of its
assets (by merger or otherwise) and may otherwise be assigned upon the prior
written consent of Employee.
7. CONFIDENTIAL INFORMATION.
(a) Non-Disclosure. During the Employment Period or at any time
thereafter, irrespective of the time, manner or cause of the termination of
employment, Employee will not directly or indirectly reveal, divulge, disclose
or communicate to any person or entity, other than authorized
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officers, directors and employees of the Employer, in any manner whatsoever, any
Confidential Information (as hereinafter defined) of Employer without the prior
written consent of the CEO.
(b) Definition. As used herein, "Confidential Information" means
information disclosed to or known by Employee as a direct or indirect
consequence of or through the Employment about Employer or its respective
businesses, products and practices, which information is not generally known in
the business in which Employer is or may be engaged. However, Confidential
Information shall not include under any circumstances any information with
respect to the foregoing matters which is (i) available to the public from a
source other than Employee, (ii) released in writing by Employer to the public
or to persons who are not under a similar obligation of confidentiality to
Employer and who are not parties to this Agreement, (iii) obtained by Employee
from a third party not under a similar obligation of confidentiality to
Employer, (iv) required to be disclosed by any court process or any government
or agency or department of any government, or (v) the subject of a written
waiver executed by Employer for the benefit of Employee.
(c) Return of Property. Upon termination of the Employment, Employee
will surrender to Employer all Confidential Information, including without
limitation, all lists, charts, schedules, reports, financial statements, books
and records of the Employer, and all copies thereof, and all other property
belonging to the Employer shall be accorded reasonable access to such
Confidential Information subsequent to the Employment Period for any proper
purpose as determined in the reasonable judgment of Employer.
8. AGREEMENT NOT TO COMPETE.
(a) Employee agrees:
(i) To give the CEO thirty (30) days' written advance notice of
voluntary termination of employment with Employer. Such notice shall
include Employee's future employment or self-employment intentions,
identification of the prospective employer and the general nature of
the prospective employment or self-employment, if known. Employer shall
continue to pay the then-current salary to Employee until the end of
such notice period.
(ii) To participate in an exit interview conducted by a member
of the personnel department of Employer and/or by a representative of
Employer, at the time of or prior to the termination of Employment with
Employer.
(iii) That for two (2) years following the termination of the
Employment, Employee shall promptly notify Employer of any change in
the identification of Employee's employer or the nature of such
employment or of self-employment.
(iv) Subject to the conditions hereinafter stated, Employee will
not, within two (2) years after leaving the employ of Employer, engage
or enter into employment by, or into self-employment or gainful
occupation as, a Competing Business or act directly or indirectly as an
advisor, consultant, sales agent or broker for a Competing Business. As
used herein, "Competing Business" means a business which is engaged in
the manufacture, sale or other
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disposition of a product or service or has under development a product
or service which is in direct competition with a product or service,
whether existing or under development, of the Employer. Employee
acknowledges that Employer does not have an adequate remedy at law in
the event Employee violates this provision and, therefor, Employee
agrees that, in such an event, Employer shall be entitled to equitable
relief, including but not limited to, injunctive relieve and to
withhold all payments due to Employee hereunder pending a judicial
determination of whether Employee has violated this Agreement.
(v) The terms of 8(a)(i) - 8(a)(iv) shall apply whether the
termination is voluntary or involuntary for whatever reason.
(b) Employer agrees:
(i) That within fifteen (15) business days after receiving
identification of the prospective employer, the nature of the
employment or self-employment pursuant to Paragraph 8(a)(i) above, or
any change therein pursuant to Paragraph 8(a)(iii) above, Employer will
advise Employee as to whether such employment constitutes a Competing
Business as defined in Paragraph 8(a)(iv) above.
(ii) In the event Employer advises Employee that such employment
constitutes a Competing Business, to forward to Employee at the end of
each of the twenty-four (24) successive calendar months following the
month in which Employment by Employer terminates, a check in the amount
equal to one-half (1/2) of the monthly salary of Employee (exclusive of
extra compensation of any kind) as of the Termination Date. If notice
is received pursuant to Paragraph 8(b) and the Employer advises
Employee that such employment constitutes a Competing Business, the
aforementioned monthly checks shall be forwarded for the remaining
number of the aforesaid twenty-four (24) successive calendar months.
Provided, however, that all payments due under this Paragraph 8(b)(ii)
shall not be required during any periods that Employee is receiving
payments under either Paragraphs 4(a) or 4(c) or payment for service
from a Competing Business.
9. WAIVER OF AGREEMENT NOT TO COMPETE. The Employer, based on the facts
revealed to it by the Employee regarding the new employment and in its
discretion upon written notification to Employee, may at any time waive or elect
not to enforce the provisions of Paragraph 8(a)(iv), in which event the
obligations of Paragraph 8(b)(ii) above shall thereafter not apply and Employee
may be engaged by or enter into the employment of the identified Competing
Business, but only such identified Competing Business..
10. AGREEMENT NOT TO SOLICIT EMPLOYEES. Employee agrees that, for a
period of two (2) years following the termination of the Employment Period,
Employee shall not, on behalf of any business, solicit or induce, or in any
manner attempt to solicit or induce, either directly or indirectly, any person
employed by, or any agent of, Employer to terminate such employment or agency,
as the case may be, with Employer. In the event of violation hereof, Employer
may terminate any payments due to Employee hereunder.
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11. NO VIOLATION. Employee hereby represents and warrants to Employer
that the execution, delivery and performance of this Agreement or the passage of
time, or both, will not conflict with, result in a default, right to accelerate
or loss of rights under any provision of any agreement or understanding to which
the Employee or, to the best knowledge of Employee, any of Employee's affiliates
are a party or by which Employee, or to the best knowledge of Employee,
Employee's affiliates may be bound or affected.
12. CAPTIONS. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit or
amplify the provisions hereof.
13. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed delivered, whether or not actually
received, two days after being deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed to
the party to whom notice is being given at the specified address or at such
other address as such party may designate by notice:
Employer: International Wire Group, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Employee: Xxxxxx X. Xxxxxxxx
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
14. INVALID PROVISIONS. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance of this Agreement. In
lieu of each such illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
15. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof, including the Prior Agreement, which is fully replaced
hereby. This Agreement may be amended, in whole or in part only, by an
instrument in writing setting forth the particulars of such amendment and duly
executed by an officer of Employer expressly authorized by the CEO to do so and
by Employee.
16. WAIVER. No delay or omission by any party hereto to exercise any
right or power hereunder shall impair such right or power to be construed as a
waiver thereof. A waiver by any of the parties hereto of any of the covenants to
be performed by any other party or any breach thereof shall not be construed to
be a waiver of any succeeding breach thereof or of any other covenant
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herein contained. Except as otherwise expressly set forth herein, all remedies
provided for in this Agreement shall be cumulative and in addition to and not in
lieu of any other remedies available to any party at law, in equity or
otherwise.
17. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same agreement.
18. GOVERNING LAW. This Agreement shall be construed and enforced
according to the laws of the state of Missouri.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
EMPLOYER: EMPLOYEE:
INTERNATIONAL WIRE GROUP, INC.
By /s/ XXXXX X. XXXXX /s/ XXXXXX X. XXXXXXXX
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Xxxxx X. Xxxxx, Chairman Xxxxxx X. Xxxxxxxx
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