EXHIBIT 10.10
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Agreement (this "Agreement") is made and entered into effective as
of the 16th day of July, 2001 by and among International Wire Holding Company, a
Delaware corporation ("Holding"), International Wire Group, Inc., a Delaware
corporation ("Group"), Omega Wire, Inc., a New York corporation ("Wire"), Wire
Technologies, Inc., an Indiana corporation ("WTI"), IWG-Philippines, Inc, a
Philippines legal entity ("Philippines"), IWG Services Co., S de RL de CV, a
Mexican legal entity ("Services"), IWG Durango, S de RL de CV, a Mexican legal
entity ("Durango"), International Wire Rome Operations, Inc., a Delaware
corporation ("Rome"), Italtrecce-Societa Italian Trecce Affini S.r.l., an
Italian legal entity ("Italtrecce"), International Wire SAS, a French legal
entity ("SAS"), Tresse Metallique J. Forissier, S.A., a French legal entity
("Forissier"), Cablerie X. Xxxxxxxxxx, S.A., a French legal entity
("Xxxxxxxxxx"), and OWI Corporation, a New York corporation ("OWI" and, together
with Holding, Group, Wire, WTI, Philippines, Services, Durango, Rome,
Italtrecce, SAS, Forissier and Xxxxxxxxxx, the "Employer"), and Xxxxx X. Xxxxxx
("Employee").
WITNESSES
WHEREAS, Employee and Group entered into an Executive Employment
Agreement as of November 13, 1999 (the "Original Agreement");
WHEREAS, the Employee's position with Employer has changed; and
WHEREAS, Employer desire to continue to retain the services of
Employee upon the terms set forth herein;
WHEREAS, Employee desires to continue 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 Chief Financial Officer (the
"Position") and Employee agrees to be employed by Employer in such Position for
a period of two (2) years ending on the 16th day of July, 2003 (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 two (2) year periods
until terminated.
(b) Duties. Employee in the Position shall be subject to the direction
and supervision of the Chief Executive Officer or his designee and shall have
those duties and responsibilities which are assigned to him during the
Employment Period by the Chief Executive Officer consistent with the Position,
provided that the Chief Executive Officer 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 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 Two
Hundred Seventy Thousand and Four Hundred Dollars ($270,400) per year. Such
salary shall be reviewed from time to time by the CEO 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 fifty percent
(50%) 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, health, executive medical supplement and other
insurance, paid vacations, 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 Five Hundred Dollars ($500)
per month.
(e) Country Club Membership. Employer shall reimburse Employee for the
initiation fee and monthly dues expense for Employee to belong to a country club
in St. Louis, Missouri area reasonably acceptable to Employer and for the
initiation fee and monthly dues expense for that Club, but not for any charges
made by Employee at the 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
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have occurred by Employee shall have been unable in 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 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), 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 current basic compensation
hereunder [which shall not be less than the amount specified in Section 2(a)
above] until the longer of eighteen (18) months or 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 by assigned upon the prior
written consent of Employee.
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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 officers,
directors and employees of the Employer, in any manner whatsoever, any
Confidential Information (as herein 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 Company thirty (30) days written advance
notice of voluntary termination of employment with the Company. 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.
(ii) To participate in an exit interview conducted by a member
of the personnel department of the Company and/or by a representative
of the Company, at the time of or prior to the termination of
Employment with the Company.
(iii) That for two (2) years following the termination of the
Employment, Employee shall promptly notify the Company of any change in
the identification of Employee's employer or the nature of such
employment or of self-employment.
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(iv) Subject to the conditions hereinafter stated, Employee
will not, within two (2) years after leaving the employ of the Company,
engage or enter into employment by, or into self-employment or gainful
occupations 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 disposition of a product or service
or has under development a product or service which is in competition
with a product or service, whether existing or under development, of
the Company. Employee acknowledges that the Company does not have an
adequate remedy at law in the event Employee violates this provision
and, therefore, Employee agrees that, in such an event, the Company
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 not apply if the
termination is pursuant to Section 3(c).
(b) The Company 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, the Company
will advise Employee as to whether such employment constitutes a
Competing Business as defined in Paragraph 8(a)(iv) above.
(ii) In the event the Company advises Employee that such
employment constitutes a Competing Business and that the Company is
electing to enforce the provision of Paragraph 8(a)(iv), to forward 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 of Employee's employment. If notice is received
pursuant to Paragraph 8(b) and the Company advised 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 Section
4(a) or providing services to 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 one (1) year following the termination of the Employment Period,
Employee shall not, on behalf of any
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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.
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: Xxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxx
Xx. Xxxxx, 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 and 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 provisions 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.
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16. WAIVER. No delay or omissions 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 herein 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 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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of this date first above written:
EMPLOYEE:
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
EMPLOYERS:
INTERNATIONAL WIRE HOLDING INTERNATIONAL WIRE GROUP, INC.
COMPANY
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------ --------------------------
OMEGA WIRE, INC. WIRE TECHNOLOGIES, INC.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------ --------------------------
IWG-PHILIPPINES, INC. IWG SERVICES CO.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------ --------------------------
IWG DURANGO INTERNATIONAL WIRE
ROME OPERATIONS, INC.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------ --------------------------
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ITALTRECCE-SOCIETA ITALIANA INTERNATIONAL WIRE SAS
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------ --------------------------
TRESSE METALLIQUE J. FORISSIER, S.A. CABLERIE X. XXXXXXXXXX S.A.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------ --------------------------
OWI CORPORATION
By: /s/ [ILLEGIBLE]
------------------------
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