EMPLOYMENT AGREEMENT
Agreement made and entered into this 13th day of May, 1997, by
and among General Cable Corporation, a Delaware corporation (the "Company"),
GCC Corporation, a Delaware corporation and a wholly owned subsidiary of the
Company ("GCC"), and Xxxxxxxxxxx X. Xxxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive and GCC are parties to an employment
agreement effective as of November 7, 1994, as amended through the date of this
Agreement, which is currently in effect (the "Existing Agreement"); and
WHEREAS, it is proposed that shares of the Company's Common
Stock, $.01 par value per share (the "Common Stock"), will be sold by the
Company's parent, Xxxxxxx Netherlands Cable B.V., in a public offering (the
"Public Offering"); and
WHEREAS, effective upon consummation of the Public Offering
(the "Effective Date") it is intended that the Existing Agreement be terminated
and that this Agreement become effective;
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Term of Employment.
(a) Commencing on the Effective Date, the Company shall employ
the Executive, and the Executive shall accept employment and shall serve the
Company, in such capacities, with such duties and authority, for such period, at
such level of compensation and with such benefits, and upon such other terms and
subject to such other conditions, as are hereinafter set forth. The term of the
Executive's employment hereunder shall commence on the Effective Date and,
unless previously terminated as provided herein, shall continue until the second
anniversary of the Effective Date (the "Employment Period"); provided, however,
that commencing on the second anniversary of the Effective Date and each
anniversary thereafter, the Employment Period shall automatically be extended
for one additional year unless not later than one hundred twenty (120) days
prior to such anniversary, the Company or the Executive shall have given written
notice to the other not to extend the Employment Period.
(b) If the consummation of the Public Offering
does not occur on or before October 31, 1997, this Agreement
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shall terminate and the Existing Agreement shall remain in full force and effect
in accordance with its terms.
2. Capacities, Duties and Authority.
(a) Effective on the Effective Date, the Executive shall
be elected, and throughout the Employment Period the Executive shall be entitled
to serve as, Executive Vice President, Chief Financial Officer and Treasurer of
the Company, GCC, GK Technologies, Incorporated, a New Jersey corporation
("GK"), General Cable Industries, Inc., a Delaware corporation ("Industries"),
and such other affiliates of the Company, GCC, GK or Industries as the Board of
Directors of the Company (the "Company's Board") shall request. The Company,
GCC, GK, Industries and such other affiliates are hereinafter referred to
collectively as the "Group".
(b) In his capacity as Executive Vice President, Chief
Financial Officer and Treasurer of each of the members of the Group, the
Executive shall have such authority, perform such duties, discharge such
responsibilities and render such services as are customary to and consistent
with such positions, subject to the authority and direction of the relevant
board of directors.
(c) The Executive shall render his services
diligently, faithfully and to the best of his ability,
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devoting thereto his entire business time, energy and skills on an exclusive
basis and, without the prior written consent of the Company's President, the
Executive shall not render services to or for the account of any person, firm or
corporation other than a member of the Group.
3. Compensation.
(a) The Executive shall be paid a base salary during the
Employment Period at the annual rate of Two Hundred and Four Thousand Dollars
($204,000), payable in accordance with the regular payroll practices of the
Company. The Compensation Committee of the Company's Board (the "Compensation
Committee") shall annually review the Executive's performance and determine, in
its sole discretion, whether or not to increase the Executive's base salary and,
if so, the amount of such increase. The Executive's base salary as in effect
from time to time is hereinafter referred to as the "Base Salary."
(b) The Executive shall be entitled to participate in the
General Cable Corporation 1997 Incentive Bonus Program and any performance-based
annual bonus program for senior executives of the Company for fiscal years after
1997 (a "Future Bonus Plan") on such terms and conditions as determined in the
discretion of the Compensation Committee.
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4. Employee Benefit Programs.
(a) During the Employment Period, the Executive shall be
entitled to participate in and shall have the benefit of all vacation, group
life, disability, hospital, surgical and major medical insurance plans and
programs and other employee benefit plans and programs as generally are made
available to executive personnel of the Group, as such benefit plans or programs
may be amended in the sole discretion of the Group members and with the
concurrence of the Compensation Committee, from time to time.
(b) During the Employment Period, the Executive shall be
entitled to receive or participate in any fringe benefits provided to the member
of the Group's senior-level executives in accordance with the terms and
conditions of such arrangements as may be in effect from time to time.
5. Stock Options
The Company has adopted, and the stockholder of the Company
has approved the adoption of, the General Cable Corporation Long-Term Stock
Incentive Plan (the "Stock Incentive Plan"). As soon as practicable after the
Effective Date, the Company agrees to recommend to the Company's Board that the
Executive be granted under the Stock Incentive Plan a ten-year non-qualified
option to purchase 33,000 shares of Common Stock at the initial Public
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Offering price of the Common Stock (the "Option"). The exercise price of the
Option shall be equal to the initial Public Offering price. The Option shall
vest and (subject to acceleration as provided herein or in the Change-in-Control
Agreement referred to below) be fully exercisable on the third anniversary of
the Effective Date in accordance with the terms of the Stock Incentive Plan.
6. Termination of Employment.
(a) The Executive's employment hereunder shall terminate:
(i) upon the death of the Executive;
(ii) upon the Disability of the Executive,
which for the purposes of this Agreement shall mean his
inability because of physical or mental illness or incapacity,
whether partial or total, with or without accommodation, to
perform his duties under this Agreement, as determined by the
Company's Board, after review of such reports of physicians of
recognized standing in the medical community in the
Cincinnati, Ohio metropolitan area as the Company's Board (or
a special committee thereof) selects, for a continuous period
of at least four (4) months or for an
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aggregate of one hundred fifty (150) days within
any twelve (12) month period); or
(iii) at the option of the Company, exercisable by or
upon the authority of the Company's President and effective
immediately upon the giving by the Company to the Executive of
written notice of such exercise, for "Cause", which, for
purposes of this Agreement, shall mean:
(A) the gross neglect or willful failure by the Executive
to perform his duties and responsibilities in all
material respects as set forth in Paragraph 2
hereof, after a written demand for substantial
performance is delivered to the Executive by the
Company's President, which demand specifically
identifies the manner in which the Company's
President believes that the Executive has not so
performed his duties;
(B) any act of fraud by the Executive, whether
relating to the Group or otherwise;
(C) the conviction or entry into a plea of nolo
contendere by the Executive with respect to
any felony or misdemeanor (other than a
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traffic offense which does not result in
imprisonment);
(D) the commission by the Executive of any willful or
intentional act (including any violation of law)
which materially injures the reputation or materially
adversely affects the business or business
relationships of the Group; or
(E) any willful failure or willful breach (not covered by
any of clauses (A) through (D) above) of any of the
material obligations of this Agreement, if such
breach is not cured within 10 days after written
notice thereof to the Executive by the Company's
President;
For purposes of clauses (A), (D) and (E) of this definition, no act, or failure
to act, on the Executive's part shall be deemed "willful" unless done, or
omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive's act, or failure to act, was in the best interest of
the Group.
(iv) at the option of the Company, for a
reason other than Disability or Cause, effective
immediately upon the giving of written notice of
such exercise;
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(v) at the option of the Executive, effective ten
(10) business days after the giving of written notice of such
exercise by the Executive to the Company (or such shorter
period as the Company's President may elect by giving written
notice to the Executive), in the event that the Executive has
Good Reason, which for purposes of this Agreement shall mean
the occurrence at any time of any of the following without the
Executive's prior written consent:
(A) removal from the position of Executive Vice
President or Chief Financial Officer held by the
Executive with respect to the Company or any of its
significant subsidiaries (as defined in Regulation
S-X under the Securities Exchange Act of 1934);
(B) the assignment of duties or responsibilities
materially inconsistent with those
customarily associated with the positions
held by the Executive or a diminution of the
Executive's position, authority, duties or
responsibilities (other than an isolated
action that is not taken in bad faith and is
remedied by the Company promptly after
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receipt of written notice thereof from the
Executive);
(C) except as provided in Paragraph 6(d), a reduction in
the Executive's Base Salary payable pursuant to
Paragraph 3(a) hereof or a material reduction in any
other material benefit provided the Executive
hereunder; or
(D) notice by the Company, as set forth in
Paragraph 1(a) hereof, not to extend the
Employment Period; or
(E) the failure by the Company to obtain an
agreement from any successor to assume and
agree to perform this Agreement; or
(F) any willful failure or willful breach by the Company
(not covered by any of clauses (A) through (E) above)
of any of the material obligations of this Agreement,
if such breach is not cured within 10 days after
written notice thereof by the Executive to the
Company's President;
For purpose of clause (F) of this definition, no act, or failure to act, on the
Company's part shall be deemed "willful" unless done, or omitted to be done, by
the Company not in good faith and without reasonable belief that the
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Company's act, or failure to act, was in the best interest of the Group.
(vi) at the option of the Executive, for a
reason other than Good Reason, effective upon 30
days of the giving of written notice of such
exercise.
(b) Obligations of the Company upon Termination
of Employment.
(i) Death. In the event of the Executive's death
during the Employment Period, the Employment Period shall end
as of the date of the Executive's death and his estate and/or
beneficiaries, as the case may be, shall be entitled to the
following, as soon as practicable following the date of
Executive's death:
(A) Base Salary earned but not paid prior to
the date of his death;
(B) payment for all accrued but unused
vacation time up to the date of his
death;
(C) the 1997 Incentive Bonus or any bonus
payable pursuant to any Future Bonus Plan,
to the extent earned but not paid with
respect to any year prior to the
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year in which the Executive's death
occurs;
(D) a pro rata portion (based on the number
of days worked) of the bonus payable
under the 1997 Incentive Bonus Plan or
any Future Bonus Plan in effect for the
year in which the Executive's death
occurs; provided, however, that the
performance goals established under the
applicable program with respect to the
entire year in which the Executive's
death occurs are met;
(E) immediate vesting of and lapsing of
restrictions on all unvested Restricted
Stock and any other shares of restricted
Common Stock held by the Executive on the
date of his death;
(F) immediate vesting of the Option and all
other Company stock options held by the
Executive on the date of his death, with
such options remaining exercisable for
twelve months from the date of the
Executive's death; and
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(G) such additional benefits as may be provided
by the then existing plans, programs and/or
arrangements of the Company.
(ii) Disability. If the Executive's employment is
terminated due to Disability during the Employment Period,
either by the Company or by the Executive, the Employment
Period shall end as of the date of the termination of the
Executive's employment and the Executive shall be entitled to
the following, as soon as practicable following the date of
termination:
(A) Base Salary earned but not paid prior to
the date of the termination of the
Executive's employment;
(B) payment for all accrued but unused
vacation time up to the date of the
termination of the Executive's
employment;
(C) the 1997 Incentive Bonus or any bonus
payable pursuant to any Future Bonus Plan,
to the extent earned but not paid with
respect to any year prior to the
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year in which the Executive's
termination of employment occurs;
(D) a pro rata portion (based on the number
of days worked) of the bonus payable
under the 1997 Incentive Bonus Plan or
any Future Bonus Plan in effect for the
year in which the Executive's
termination of employment occurs;
provided, however, that the performance
goals established under the applicable
program with respect to the entire year
in which the Executive's termination of
employment occurs are met;
(E) immediate vesting of and lapsing of
restrictions on all unvested Restricted
Stock and any other shares of restricted
Common Stock held by the Executive on the
date of his Disability;
(F) immediate vesting of the Option and all
other Company stock options held by the
Executive on the date of his Disability,
with such options remaining exercisable for
twelve months from the date of the
Executive's Disability; and
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(G) such additional benefits as may be provided
by the then existing plans, programs and/or
arrangements of the Company.
(iii) Cause. If the Company terminates the
Executive's employment for Cause, the Executive shall be
entitled to the following, within 60 days following the date
of termination:
(A) Base Salary earned but not paid prior to
the date of the termination of his
employment;
(B) payment for all accrued but unused
vacation time up to the date of the
termination of the Executive's
employment; and
(C) such additional benefits as may be provided
by the then existing plans, programs and/or
arrangements of the Company.
(iv) Without Cause or With Good Reason. If
the Executive's employment is terminated by the
Company (other than for Cause or Disability) or if
the Executive terminates his employment with Good
Reason, the Employment Period shall end as of the
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effective date of termination and the Executive shall be
entitled to the following, within 10 business days following
the date of termination or such earlier date as may be
required by law:
(A) Base Salary earned but not paid prior to
the date of the termination of his
employment;
(B) payment for all accrued but unused
vacation time up to the date of the
termination of the Executive's
employment;
(C) the 1997 Incentive Bonus or any bonus
payable pursuant to any Future Bonus Plan,
to the extent earned but not paid with
respect to any year prior to the year in
which the Executive's termination of
employment occurs;
(D) a lump sum amount equal to one times the sum
of (x) the Base Salary (based on the Base
Salary in effect on the date of the
termination of the Executive's employment,
and in the case of a termination of
employment by the Executive for Good Reason
due to a
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reduction in Base Salary under Paragraph
6(a)(v)(C), based on the Base Salary in
effect immediately prior to such reduction)
plus (y) the target annual bonus under the
1997 Incentive Bonus Plan or any Future
Bonus Plan, as the case may be, for the year
of termination;
(E) immediate vesting of and lapsing of
restrictions on all unvested Restricted
Stock and any other shares of restricted
Common Stock held by the Executive on the
date of the termination of his employment;
(F) immediate vesting of the Option and all
other Company stock options held by the
Executive on the date of the termination of
his employment, with all stock options
remaining exercisable until their expiration
pursuant to the Stock Incentive Plan;
(G) continued participation, as if he were
still an employee, in the Company's
medical, dental, hospitalization and
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life insurance plans, programs and/or
arrangements in which he was participating
on the date of the termination of his
employment on the same terms and conditions
as other executives under such plans,
programs and/or arrangements until the
earlier of one year from the date of the
Executive's termination or the date, or
dates, he receives equivalent coverage and
benefits under the plans, programs and/or
arrangements of a subsequent employer (such
coverage and benefits to be determined on a
coverage-by-coverage or benefit-by-benefit
basis); and
(H) such additional benefits as may be
provided by the then existing plans,
programs and/or arrangements of the
Company (other than any severance
payments payable under the terms of any
benefit plan), including outplacement
services consistent with the Company's
then existing practice for senior
executives or, if there is no such then
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existing practice, consistent with the
Company's past practice for senior
executives.
(v) Without Good Reason. If the Executive's
employment is terminated by the Executive without Good Reason,
the Executive shall be entitled to the following, within 60
days following the date of termination or such earlier date as
may be required by law:
(A) Base Salary earned but not paid prior to
the date of the termination of his
employment;
(B) payment for all accrued but unused
vacation time up to the date of the
termination of the Executive's
employment; and
(C) such additional benefits as may be provided
by the then existing plans, programs and/or
arrangements of the Company.
(c) Any payment under Paragraph 6(b) hereof shall be in lieu
of any other severance, bonus or other payments to which the Executive might
then be entitled pursuant to this Agreement or any statutory or common law
claim,
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subject, in each case, to the execution by the Executive and delivery to the
Company of a customary release of all claims related to his employment or
termination thereof in a form to be provided by the Company. The Company's
obligations to make the payments under Paragraph 6(b) hereof, except in the case
of a termination for Cause, shall not otherwise be affected by any
circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company or any member of the Group
may have against the Executive. The Executive acknowledges and agrees that in
the event the parties dispute whether the Executive shall be entitled to the
payment hereunder, such payment shall not be deemed to be earned or otherwise
vest hereunder until such time as the dispute is resolved in accordance with
Paragraph 11(c) hereof.
(d) Notwithstanding anything to the contrary herein, if the
Company's President has reason to believe that there are circumstances which, if
substantiated, would constitute Cause as defined herein, the Company may suspend
the Executive from employment without notice for such period of time as shall be
reasonably necessary for the Company's President to ascertain whether such
circumstances are substantiated. During such suspension, the Executive shall
continue to be paid all compensation and provided all
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benefits hereunder; provided, however, that if the Executive has been indicted
or otherwise formally charged by governmental authorities with any felony, the
Company's President may in its sole discretion, and without limiting the
Company's President's discretion to terminate the Executive's employment for
Cause, suspend the Executive without continuation of any compensation or
benefits hereunder, pending final disposition of such criminal charge(s). Upon
receiving notice of any such suspension, the Executive shall promptly leave the
premises of the Company and remain off such premises and the premises of all
other Group members until further notice from the Company's President.
7. Negative Covenants of the Executive.
(a) During the Employment Period and for a period of two
(2) years thereafter, the Executive will not, directly or indirectly:
(i) solicit, entice, persuade or induce any employee,
director, officer, associate, consultant, agent or independent
contractor of the Group to terminate his or her employment or
engagement by the Group to become employed or engaged by any
person, firm, corporation or other business enterprise other
than a member of the
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Group, except in furtherance of his responsibility
during the Employment Period; or
(ii) authorize or assist in the taking of
such action by any third party.
For purposes of this Paragraph 7(a), the terms "employee," "director,"
"officer," "associate," "consultant," "agent," and "independent contractor"
shall include any person with such status at any time during the twelve (12)
months prior to the termination of the Executive's employment and for two (2)
years following the Executive's termination of employment. The Executive shall
not be deemed to have violated the provisions of this Paragraph 7(a) by reason
of an isolated act, or failure to act, not taken in bad faith.
(b) During the Employment Period and for a period of one (1)
year thereafter, the Executive will not, directly or indirectly, engage,
participate, make any financial investment in, or become employed by or render
advisory or other services to or for any person, firm, corporation or other
business enterprise (the "Competing Enterprise") which is engaged, directly or
indirectly, during the Employment Period or at the time of Executive's
termination of employment, as the case may be, in competition with the Group in
(i) the development, design, manufacture, marketing or distribution of wire and
cable or (ii) any other business
22
activities of the Group accounting for more than 10% of its net sales in the
most recently completed fiscal year or reasonably expected to do so in the
current fiscal year, in the United States and in any foreign jurisdiction in
which the Group operates or, at the end of Employment Period, proposes to
operate; provided, in either case, that the competitive businesses of the
Competing Enterprise account for more than 10% of the net sales of the Competing
Enterprise for its most recently completed fiscal year and the Executive does
not work or consult in such competitive business. The foregoing covenant shall
not be construed to preclude the Executive from making any investments in the
securities of any company, whether or not engaged in competition with the Group,
to the extent that such securities are actively traded on a national securities
exchange or in the over-the-counter market in the United States or any foreign
securities exchange and, after giving effect to such investment, the Executive
does not beneficially own securities representing more than 1% of the combined
voting power of the voting securities of such company.
(c) During the Employment Period and thereafter without
limit as to time, the Executive will not (other than in the regular course and
in furtherance of the Group's
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business) divulge, furnish or make available to any person any knowledge or
information with respect to the business or affairs of the Group which is
confidential, including, without limitation, "know-how", trade secrets, customer
and supplier lists, pricing policies, operational methods, marketing plans or
strategies, product development techniques or plans, business acquisition or
disposition plans, new personnel employment plans, methods of manufacture,
technical processes, designs and design projects, inventions and research
projects and financial budgets and forecasts of the Group except (1) information
which at the time is available to others in the business or generally known to
the public other than as a result of disclosure by the Executive not permitted
hereunder, and (2) when required to do so by a court of competent jurisdiction,
by any governmental agency or by any administrative body or legislative body
(including a committee thereof) with purported or apparent jurisdiction to order
the Executive to divulge, disclose or make accessible such information. All
memoranda, notes, lists, records, electronically stored data, recordings or
videotapes and other documents (and all copies thereof) made or compiled by the
Executive or made available to the Executive (whether during his employment by
the Group or by any predecessor thereof) concerning the
24
business of the Group or any predecessor thereof shall be the property of the
Company or such other member of the Group and shall be delivered to the Company
or such other member of the Group promptly upon the termination of the
Employment Period.
(d) The Executive acknowledges that all developments,
including, without limitation, inventions, patentable or otherwise, trade
secrets, discoveries, improvements, ideas and writings that alone or jointly
with others the Executive may conceive, make, develop or acquire during the
period of his employment by the Group and any predecessor thereof (collectively,
the "Developments"), are and shall remain the sole and exclusive property of the
Group and the Executive hereby assigns to the Group all of his right, title and
interest in all such Developments. The Executive shall promptly and fully
disclose all future Developments to the Company's Board, and, at any time upon
request and at the expense of the Company, shall execute, acknowledge and
deliver to the Group all instruments that the Group shall prepare, give
evidence, and take all other actions that are necessary or desirable in the
reasonable opinion of the Company's counsel, to enable the Group to file and
prosecute applications for and to acquire, maintain and enforce all letters
patent, trademark registrations or
25
copyrights covering the Developments in all countries in which the same are
deemed necessary.
(e) The Executive acknowledges that the services to be
rendered by the Executive are of a special, unique and extraordinary character
and, in connection with such services, the Executive will have access to
confidential information vital to the Group's business and that irreparable
injury would be sustained by the Group in the event of his breach of any of the
covenants contained in this Paragraph 7, which injury could not be remedied
adequately by the recovery of damages in an action at law. Accordingly, the
Executive agrees that, upon a breach or threatened breach by him of any of such
covenants, the Company and, to the extent appropriate, any other member of the
Group shall be entitled, in addition to and not in lieu of any and all other
remedies, to an injunction to be issued by any court of competent jurisdiction
restraining the commission or continuance of any such breach or threatened
breach upon minimal bond, with or without surety, and that such an injunction
will not work an undue hardship on him.
(f) The provisions of this Paragraph 7 shall survive the
termination of this Agreement, irrespective of the reasons therefor.
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(g) If any court determines that any of the provisions of this
Paragraph 7 is invalid or unenforceable, the remainder of such provisions shall
not thereby be affected and shall be given full effect without regard to the
invalid provisions. If any court construes any of the provisions of this
Paragraph 7, or any part thereof, to be unreasonable because of the duration of
such provision or the geographic scope thereof, such court shall have the power
to reduce the duration or restrict the geographic scope of such provision and to
enforce such provision as so reduced or restricted.
8. Reimbursement of Business Expense.
During the Employment Period, the Executive is
authorized to incur reasonable business expenses in carrying out his duties and
responsibilities under the Agreement, and the Company or the relevant member of
the Group shall promptly reimburse him for all such reasonable business expenses
incurred in connection with carrying out the business of such member of the
Group, subject to documentation in accordance with such member of the Group's
policy.
9. Release.
In consideration of the Company's granting of the Option, the
Executive releases GCC, the Company, Xxxxxxx
27
PLC, and any of their respective past and present officers, directors,
shareholders, subsidiaries, employees, agents and affiliates from any and all
claims, demands and causes of action whatsoever related to the Executive's
employment prior to the Effective Date by GCC and its affiliates, in law or
equity, known or unknown, accrued or unaccrued, past, present or future,
relating to any acts or omissions during all periods ending prior to the
Effective Date, whether arising out of any other arrangements or understandings,
or otherwise; provided, however, that neither this release nor the provisions of
Paragraph 11(b) hereof shall adversely affect (i) the Executive's rights to any
Base Salary (net of withholding taxes) or vacation provided for therein that is
accrued but unpaid as of the Effective Date; (ii) the Executive's rights with
respect to Xxxxxxx PLC options previously granted to the Executive, which shall
remain exercisable in accordance with the terms of the Xxxxxxx PLC (No. 3) U.S.
Executive Share Option Scheme and the Xxxxxxx PLC (No. 2) Share Option Scheme,
if any; (iii) the Executive's rights under existing plans, programs and/or
arrangements of the Company which are accrued but unpaid as of the Effective
Date; (iv) the Executive's rights to indemnification under any indemnification
agreement, applicable law and the certificates of incorporation and by-
28
laws of the Company and other members of the Group, or the Executive's rights
under any director's and officers' liability insurance policy covering the
Executive, in each case arising out of or relating the Executive's employment
prior to the Effective Date; or (v) the Executive rights under this Agreement.
10. Indemnification.
To the fullest extent permitted by law and the Company's
certificate of incorporate and by-laws, the Company shall promptly indemnify the
Executive for all amounts (including, without limitation, judgments, fines,
settlement payments, losses, damages, costs and expenses (including reasonable
attorneys' fees)) incurred or paid by the Executive in connection with any
action, proceeding, suit or investigation arising out of or relating to the
performance by the Executive of services for (or acting as a fiduciary of any
employee benefit plans, programs or arrangements of) the Company or other member
of the Group, including as a director, officer or employee of the Company or
other member of the Group. The Company also agrees to maintain a director's and
officers' liability insurance policy covering the Executive to the extent the
Company provides such coverage for its other executive officers. Notwithstanding
any other provision of this Agreement, the
29
provisions of this Paragraph 10 shall survive any termination or expiration of
this Agreement.
11. Miscellaneous.
(a) This Agreement is intended to be performed in, and shall
be construed and enforced in accordance with the laws of, the State of Kentucky
without reference to principles of conflict of laws.
(b) Upon the Effective Date, this Agreement shall incorporate
the complete understanding and agreement between the parties with respect to the
subject matter hereof and (subject to Paragraph 9 hereof) supersede any and all
other prior or contemporaneous agreements, written or oral, between the
Executive and any member of the Group or any predecessor thereof with respect to
such subject matter including the Existing Agreement, other than the
Change-in-Control Agreement, of even date herewith, between the Company, GCC and
the Executive (the "Change-in-Control Agreement"); provided, however, that no
payment or benefit shall be made or provided hereunder if and to the extent such
payment or benefit would be duplicative of a payment or benefit to which the
Executive is then entitled under the Change-in-Control Agreement. No provision
hereof may be modified or waived except by a written instrument duly
30
executed by the Executive and the Company with the express approval of the
Compensation Committee.
(c) All differences, claims or matters in dispute arising out
of this Agreement, the breach hereof or otherwise arising between the Company or
any of its affiliates and the Executive shall, at the election of either party,
by notice to the other, be submitted to arbitration by the American Arbitration
Association or its successor, in Cincinnati, Ohio. Such arbitration shall be
governed by the then existing rules of the American Arbitration Association and
the laws of the State of Kentucky as then in effect. Any arbitration conducted
pursuant to the provisions of this Agreement shall be conducted by a recognized
independent and impartial arbitrator mutually agreed to by the parties or, if
they cannot agree within thirty (30) days after the initial demand for
arbitration, by three arbitrators, one chosen by the Company, one chosen by the
Executive and the third (who shall be a recognized independent and impartial
arbitrator and who shall act as chairperson and will be compensated at a rate
generally equivalent to his or her normal billing rate or compensation) selected
by the two so chosen; provided, that if either party fails to appoint an
arbitrator within 20 days of written notice by the other
31
that it has appointed an arbitrator, then the arbitration shall be conducted by
an arbitrator selected by the American Arbitration Association in accordance
with its then existing rules. If the arbitrators selected by the parties fail to
agree on the third arbitrator within thirty (30) days of the appointment of the
second arbitrator, the third arbitrator shall be selected by the American
Arbitration Association in accordance with its then existing rules. The
impartial arbitrator shall set a time for hearing within sixty (60) days of
his/her selection. Each party shall have an opportunity to present evidence on
the issues in dispute before the arbitrator and each party may be represented by
legal counsel. The decision of the arbitrator(s) shall be rendered within thirty
(30) days of the close of the hearing. The fees and expenses of the impartial
arbitrator shall be shared equally by the parties and each party shall bear the
cost of any arbitrator chosen unilaterally by that party. Any determination
reached or award granted pursuant to arbitration shall be final, non-appealable
and binding on the parties. The judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction. The parties
acknowledge that their agreement pursuant to the terms of this Paragraph 11(c)
to submit the resolution of all disputes arising out of this Agreement to
arbitration by
32
the American Arbitration Association is the result of their mutual and voluntary
negotiation and agreement, and is not intended to and does not constitute a
"condition or precondition of employment" within the meaning or interpretation
of that phrase as used in Kentucky Revised Statutes 336.700(2).
(d) The Executive acknowledges that before entering into this
Agreement he has received a reasonable period of time to consider this Agreement
and has had sufficient time and an opportunity to consult with any attorney or
other advisor of his choice in connection with this Agreement and all matters
contained herein, and that he has been advised to do so if he so chooses. The
Executive further acknowledges that this Agreement and all terms hereof are
fair, reasonable and are not the result of any fraud, duress, coercion, pressure
or undue influence exercised by the Company, that he has approved and entered
into this Agreement and all of the terms hereof on his own free will, and that
no promises or representations have been made to him by any person to induce him
to enter into this Agreement other than the express terms set forth herein.
(e) The Company shall be entitled to deduct and withhold from
all compensation payable to the Executive pursuant to this Agreement all amounts
required to be
33
deducted and withheld therefrom pursuant to any present or future law,
regulation or ordinance of the United States of America or any state or local
jurisdiction therein or any foreign taxing jurisdiction.
(f) Paragraph headings are included in this Agreement for
convenience of reference only and shall not affect the interpretation of the
text hereof.
(g) Any and all notices, demands or other communications
to be given or made hereunder shall be in writing and shall be deemed to have
been fully given or made when personally delivered, or on the third business day
after mailing from within the continental United States by registered mail,
postage prepaid, addressed as follows:
If to the Company:
General Cable Corporation
0 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
If to the Executive:
Xxxxxxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Either party may change the address to which any notices to it shall be sent by
giving to the other party written notice of such change in conformity with the
foregoing.
34
(h) This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which
together shall constitute one and the same instrument.
(i) This Agreement may be assigned by the Company to, and
shall inure to the benefit of, any successor to substantially all the assets and
business of the Company as a going concern, whether by merger, consolidation or
purchase of substantially all of the assets of the Company or otherwise,
provided that such successor shall assume the Company's obligations under this
Agreement. This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
(j) The Company shall be deemed to have performed its
obligations to make payments or provide benefits to the
35
Executive under this Agreement if it has caused a member of the Group to make
such payments or provide such benefits.
IN WITNESS WHEREOF, each of the Company and the Executive has
executed this Agreement this ____ day of May, 1997, to become effective on the
Effective Date.
GENERAL CABLE CORPORATION
By:______________________________
Xxxxxxx Xxxxxxxxxx
Chairman, Chief Executive
Officer and President
GCC CORPORATION
By:______________________________
Xxxxxxx Xxxxxxxxxx
Chairman, Chief Executive
Officer and President
______________________________
Xxxxxxxxxxx X. Xxxxxxxx
36
