1
Exhibit 10.34
EMPLOYMENT AGREEMENT
--------------------
(Amended and Restated as of April 28, 2000)
Agreement made and entered into this 28th day of April, 2000
(the "Effective Date"), by and between General Cable Corporation, a Delaware
corporation (the "Company") and Xxxxxxx X. Xxxxx (the "Executive").
W I T N E S S E T H:
-------------------
WHEREAS, the Executive and the Company are parties to an
employment agreement effective as of October 18, 1999, which is currently in
effect (the "Employment Arrangement"); and
WHEREAS, effective upon the Effective Date it is intended that
the Employment Arrangement be amended and restated as set forth herein;
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. TERM OF EMPLOYMENT.
Commencing on the Effective Date, the Company shall employ the
Executive, and the Executive shall continue 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 third
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.
2. CAPACITIES, DUTIES AND AUTHORITY.
(a) Effective on the Effective Date and throughout the
Employment Period, the Executive shall be entitled to serve as, President and
Chief Operating Officer of the Company, GK Technologies, Incorporated, a New
Jersey corporation ("GK"), BICC General Cable Industries, Inc., a Delaware
corporation ("BICC General"), and such other affiliates of the Company, GK or
BICC General as the Board of
2
Directors of the Company (the "Company's Board") shall request. The Company, GK,
BICC General and such other affiliates are hereinafter referred to collectively
as the "Group."
(b) In his capacity as President and Chief Operating Officer
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, devoting thereto his entire business
time, energy and skills on an exclusive basis and, without the prior written
consent of the Company's Board, 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 Four Hundred Forty Thousand Dollars
($440,000), 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 1999 Incentive Bonus Program and any performance-based
annual bonus program for senior executives of the Company for fiscal years after
1999 (a "Future Bonus Plan") on such terms and conditions as determined in the
discretion of the Compensation Committee. For purposes of the obligations of the
Company on termination of employment of the Executive, the target bonus amount
under any Future Bonus Plan shall be not less than 120% of the Executive's Base
Salary in effect in the year that employment is terminated.
4. EMPLOYEE BENEFIT PROGRAMS.
(a) During the Employment Period, the Executive shall be
entitled to vacation generally made available to executive personnel of the
Group and to participate in and have the benefit of all 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
2
3
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 fringe benefit arrangements that provide
automobile, club dues, tax services and financial planning 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 stockholders of the Company
have approved the adoption of, the General Cable Corporation Stock Incentive
Plan (the "Stock Incentive Plan"). The Executive shall be eligible to receive
grants under the Stock Incentive Plan during the Employment Period as determined
by the Compensation Committee of the Company's Board in its sole discretion.
6. RESTRICTED STOCK AND OTHER STOCK AWARDS
During the Employment Period, the Executive shall be eligible
to receive grants of restricted stock and other stock awards ("Stock Awards") in
such amounts and subject to such terms as determined by the Compensation
Committee of the Company's Board in its sole discretion.
7. 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 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 Board and effective
immediately upon the
3
4
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 Board
which demand specifically identifies the manner in
which the Company's Board 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 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
Board;
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;
(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 Board 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
4
5
occurrence at any time of any of the following without the
Executive's prior written consent:
(A) removal from the position of President and Chief
Operating Officer 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 receipt of
written notice thereof from the Executive);
(C) except as provided in Paragraph 7(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 Board;
For purposes 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 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.
5
6
(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) payment for any bonus deferred for any year prior to
the year in which occurs the date of his death;
(D) the 1999 Incentive Bonus or any bonus payable
pursuant to any Future Bonus Plan, to the extent
earned but not paid with respect to the year in which
the Executive's death occurs;
(E) a pro rata portion (based on the number of days
worked) of the bonus payable under the 1999 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;
(F) immediate vesting of and lapsing of restrictions on
all unvested Stock Awards held by the Executive on
the date of his death;
(G) immediate vesting of all 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
(H) 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:
6
7
(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) payment for any bonus deferred for any year prior to
the year in which occurs the date of the termination
of the Executive's employment;
(D) the 1999 Incentive Bonus or any bonus payable
pursuant to any Future Bonus Plans, to the extent
earned but not paid with respect to the year in which
the Executive's termination of employment occurs;
(E) a pro rata portion (based on the number of days
worked) of the bonus payable under the 1999 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;
(F) immediate vesting of and lapsing of restrictions on
all unvested Stock Awards held by the Executive on
the date of his Disability;
(G) immediate vesting of all 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
(H) 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;
7
8
(C) payment for any bonus deferred for any year prior to
the year in which occurs the date of the termination
of the Executive's employment; and
(D) 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 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) payment for any bonus deferred for any year prior to
the year in which occurs the date of the termination
of the Executive's employment;
(D) the 1999 Incentive Bonus or any bonus payable
pursuant to any Future Bonus Plan, to the extent
earned but not paid with respect to the year in which
the Executive's termination of employment occurs;
(E) a lump sum amount equal to three 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
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 1999 Incentive Bonus Plan or any Future
Bonus Plan, as the case may be, for the year of
termination;
8
9
(F) immediate vesting of and lapsing of restrictions on
all unvested Stock Awards held by the Executive on
the date of the termination of his employment;
(G) immediate vesting of all 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;
(H) continued participation, as if he were still an
employee, in the Company's medical, dental,
hospitalization and 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 three years 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
(I) 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 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;
(C) payment for any bonus deferred for any year prior to
the year in which occurs the date of the termination
of the Executive's employment;
9
10
(D) such additional benefits as may be provided by the
then existing plans, programs and/or arrangements of
the Company.
(c) Any payment under Paragraph 7(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, 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 7(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 Board 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 Board to ascertain whether such
circumstances are substantiated. During such suspension, the Executive shall
continue to be paid all compensation and provided all benefits thereunder;
PROVIDED, HOWEVER, that if the Executive has been indicted or otherwise formally
charged by governmental authorities with any felony, the Company's Board 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 Board.
8. 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
10
11
business enterprise other than a member of the 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 8(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 8(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 two (2)
years 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 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 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
11
12
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 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 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 8, 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
12
13
bond, with or without surety, and that such an injunction will not work an undue
hardship on him.
(f) The provisions of this Paragraph 8 shall survive the
termination of this Agreement, irrespective of the reasons therefor.
(g) If any court determines that any of the provisions of this
Paragraph 8 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 8, 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.
9. 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.
10. INDEMNIFICATION.
To the fullest extent permitted by law and the Company's
certificate of incorporation 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 provisions of this Paragraph 10 shall
survive any termination or expiration of this Agreement.
13
14
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 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
Employment Arrangement), other than the Change-in-Control Agreement, of even
date herewith, between the Company and the Executive (the "Change-in-Control
Agreement"); PROVIDED, HOWEVER, this Agreement shall not adversely affect the
Executive's rights to the Option (as defined in the Employment Arrangement) or
the Executive's rights to receive accrued amounts under the Employment
Arrangement and 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 executed by the Executive and the Company with the express
approval of the Compensation Committee.
(c) Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration conducted in
Cincinnati, Ohio under the Commercial Arbitration Rules then prevailing of the
American Arbitration Association and such submission shall request the American
Arbitration Association to: (i) appoint an arbitrator experienced and
knowledgeable concerning the matter then in dispute; (ii) require the testimony
to be transcribed; (iii) require the award to be accompanied by findings of fact
and a statement of reasons for the decision; and (iv) request the matter to be
handled by and in accordance with the expedited procedures provided for in the
Commercial Arbitration Rules. The determination of the arbitrators, which shall
be based upon a de novo interpretation of this Agreement, shall be final and
binding and judgment may be entered on the arbitrators' award in any court
having jurisdiction. All costs of the American Arbitration Association and the
arbitrator shall be borne by the Company, unless the position advanced by the
Executive is determined by the arbitrator to be frivolous in nature.
(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
14
15
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 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:
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 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.
(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
15
16
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 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 as of the 28th day of April, 2000.
GENERAL CABLE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
ACCEPTED AND AGREED TO
as of the date first written above
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
16
