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Exhibit 10.38
CHANGE-IN-CONTROL AGREEMENT
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(Amended and Restated as of April 28, 2000)
AGREEMENT, made and entered into as of the 18th day of
October, 1999 (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 :
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WHEREAS, the Executive is a key employee of the Company or one
of its subsidiaries; and
WHEREAS, the Company and the Executive are parties to a
change-in-control agreement effective as of May 13, 1997, which is currently in
effect (the "Prior Change-in-Control Agreement"); and
WHEREAS, effective upon the Effective Date it is intended that
the Prior Change-in-Control Agreement be terminated and that this Agreement
become effective;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt of which is mutually acknowledged, the Company and the Executive agree
as follows:
1. TERM
This Agreement shall become effective upon the Effective Date
and shall terminate and be of no further force or effect upon the expiration of
the Employment Agreement (the "Term"); provided, however, that, if a
Change-in-Control shall have occurred during the Term or within six months after
Executive's employment terminates, as described in Paragraph 2(a) hereof, the
Term shall expire on the last day of the thirty-sixth (36th) month following the
month in which the Change-in-Control occurs.
2. TERMINATION OF EXECUTIVE'S EMPLOYMENT PRIOR
TO OR FOLLOWING A CHANGE-IN-CONTROL
(a) If the Executive's employment is terminated by the Company
or any of its subsidiaries or by the Company's successor without Cause (as
hereinafter defined), or the Executive terminates his employment with the
Company or any of its subsidiaries or with the Company's successor for Good
Reason (as hereinafter
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defined), and such termination occurs within six months preceding, or within
three years following, a Change-in-Control, the Executive shall be entitled to
receive a Change-in-Control Payment (as hereinafter defined).
(b) Notwithstanding the foregoing, the Executive shall not be
entitled to receive the Change-in-Control Payment if any of the Circumstances of
Ineligibility (as hereinafter defined) apply to the Executive.
(c) "Change-in-Control Payment" means the product of (i) three
times (ii) the sum of (x) the Executive's annual base salary at the time of the
termination of the Executive's employment (or, in the case of a termination of
employment for Good Reason based on a reduction of the Executive's annual base
salary, the annual base salary in effect immediately prior to such reduction)
plus (y) the Executive's target annual incentive bonus in effect for the year in
which the Executive's employment is terminated or the year in which the
Change-in-Control occurs, whichever target bonus is greater.
(d) "Change-in-Control" means that any of the following has
occurred:
(i) any person or other entity (other than any of the
Company's subsidiaries or any employee benefit plan sponsored
by the Company or any of its subsidiaries) including any
person as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), becomes
the beneficial owner, as defined in Rule 13d-3 under the
Exchange Act, directly or indirectly, of more than fifty
percent (50%) of the total combined voting power of all
classes of capital stock of the Company normally entitled to
vote for the election of directors of the Company (the "Voting
Stock"),
(ii) the stockholders of the Company approve the sale
of all or substantially all of the property or assets of the
Company and such sale occurs;
(iii) the stockholders of the Company approve a
consolidation or merger of the Company with another
corporation (other than with any of the Company's
subsidiaries), the consummation of which would result in the
shareholders of the Company immediately before the occurrence
of the consolidation or merger owning, in the aggregate, less
than 60% of the Voting Stock of the surviving entity, and such
consolidation or merger occurs; or
(iv) a change in the Company's Board of Directors
occurs with the result that the members of the Board on the
Effective Date (the "Incumbent Directors") no longer
constitute a majority of such Board of Directors, provided
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that any person becoming a director (other than a director
whose initial assumption of office is in connection with an
actual or threatened election contest or the settlement
thereof, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose
election or nomination for election was supported by
two-thirds (2/3) of the then Incumbent Directors shall be
considered an Incumbent Director for purposes hereof.
(e) "Cause" shall have the meaning set forth in the Employment
Agreement and shall be subject to the procedures set forth herein.
(f) "Good Reason" means the occurrence of any of the following
without the prior written consent of the Executive:
(i) removal from the position of President or Chief
Operating 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) on
the 181st day prior to the Change-in-Control or any senior
position that the Executive subsequently achieves;
(ii) the assignment of duties or responsibilities
materially inconsistent with those customarily associated with
the position held by the Executive on the 181st day prior to
the Change-in-Control or any senior position that the
Executive subsequently achieves (alternatively, the "Measuring
Position"), or any other action by the Company or a successor
that results in a diminution of the Executive's position,
authority, duties or responsibilities compared to the
Measuring Position, other than an isolated action that is not
taken in bad faith and is remedied by the Company or a
successor promptly after receipt of written notice thereof
from the Executive;
(iii) a reduction in the Executive's annual base
salary or a material reduction in any other material benefit
provided the Executive by the Company;
(iv) notice by the Company not to extend the
Employment Agreement;
(v) the relocation of the Executive's principal place
of employment to a location more than fifty (50) miles from
the Executive's principal place of employment (unless such
relocation does not increase the Executive's commute by more
than twenty (20) miles) on the 181st day prior to the
Change-in-Control, except for required travel on the Company's
business to an extent substantially consistent with the
Executive's business travel obligations as of such day; or
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(vi) the failure by the Company to obtain an
agreement from any successor to assume and agree to perform
this Agreement.
(g) "Circumstances of Ineligibility" means any one or more of
the following circumstances:
(i) DEATH, DISABILITY OR VOLUNTARY TERMINATION. If
the Executive is terminated due to death or Disability (as
defined in the Employment Agreement) or if the Executive
elects to voluntarily terminate his employment, including a
termination due to retirement, with the Company or a
successor, the Executive shall not be eligible to receive the
Change-in-Control Payment; PROVIDED, HOWEVER, that termination
of employment by the Executive for Good Reason shall not
constitute a Circumstance of Ineligibility.
(ii) TERMINATION FOR CAUSE. If the Executive's
employment with the Company or a successor is terminated for
Cause at any time preceding or following a Change-in-Control,
the Executive shall not be eligible to receive the
Change-in-Control Payment.
3. TIME OF PAYMENT OF CHANGE-IN-CONTROL PAYMENT
The Change-in-Control Payment (if any) shall be paid to the
Executive in cash in a lump sum within 10 business days following the later of
(i) the date of the termination of the Executive's employment with the Company
or the successor or (ii) the date of the Change-in-Control.
4. VESTING OF RESTRICTED STOCK AND STOCK OPTIONS
Upon the occurrence of a Change-in-Control, any and all stock
awards under the General Cable Corporation Stock Incentive Plan (the "Stock
Incentive Plan") shall become fully vested and immediately exercisable and shall
remain exercisable until their expiration in accordance with the terms of the
Stock Incentive Plan.
5. CONTINUATION OF EXECUTIVE WELFARE BENEFITS
Notwithstanding anything contained herein to the contrary, if
the Executive is entitled to receive the Change-in-Control Payment, the Company
or any of its subsidiaries or successor shall continue his participation, as if
he were still an employee, in the medical, dental, hospitalization and life
insurance plans, programs and/or arrangements of the Company or any of its
subsidiaries in which he was participating on the date of the termination of his
employment (or on the 181st day prior to the Change-in-Control, if more
favorable to the Executive) on the same terms and conditions as other executives
under such plans, programs and/or arrangements until
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the earlier of (i) the end /of the 36-month (30-month in the case of life
insurance programs) period following the date of the termination of his
employment or (ii) 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).
6. GROSS-UP
(a) Whether or not the Executive becomes entitled to the
Change-in-Control Payment, if any of the payments or benefits received or to be
received by the Executive in connection with a Change-in-Control or the
Executive's termination of employment (whether such payments or benefits are
provided pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Company, any person whose actions result in a
Change-in-Control or any person affiliated with the Company or such person)
(such payments or benefits, excluding the Gross-Up Payment, being hereinafter
referred to as the "Total Payments") would be subject to the excise tax (the
"Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986,
as amended (the "Code"), the Company shall pay to the Executive an additional
amount (the "Gross-Up Payment") equal to the Excise Tax plus related federal,
state and local income, excise, and employment taxes. The intent of the Gross-Up
Payment is to ensure that the Executive does not bear the cost of the Excise Tax
or any tax associated with the Company's reimbursement of the Excise Tax.
(b) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(i) all of the Total Payments shall be treated as "parachute payments" (within
the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax
counsel ("Tax Counsel") selected by the Company and reasonably acceptable to the
Executive, such payments or benefits (in whole or in part) do not constitute
parachute payments, including by reason of Section 280G(b)(4)(A) of the Code,
(ii) all "excess parachute payments" within the meaning of Section 280G(b)(1) of
the Code shall be treated as subject to the Excise Tax unless, in the opinion of
Tax Counsel, such excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered (within the meaning of
Section 280G(b)(4)(B) of the Code) in excess of the "base amount" (as defined in
Section 280G(b)(3) of the Code) allocable to such payment, or are otherwise not
subject to the Excise Tax, and (iii) the value of any noncash benefits or any
deferred payment or benefit shall be determined by Tax Counsel in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, the Executive shall be deemed to
pay federal income tax at the highest marginal rate of federal income taxation
in the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of the Executive's residence on the date of the Executive's termination
of employment net of the
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maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes.
(c) In the event that the Excise Tax is finally determined to
be less than the amount taken into account hereunder in calculating the Gross-Up
Payment, the Executive shall repay the Company, within five (5) business days
following the time that the amount of such reduction in the Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment attributable to the Excise
Tax and federal, state and local income and employment taxes imposed on the
Gross-Up Payment being repaid by the Executive, to the extent that such
repayment results in a reduction in the Excise Tax and a dollar-for-dollar
reduction in the Executive's taxable income and wages for purposes of federal,
state and local income and employment taxes, plus interest on the amount of such
repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In
the event that the Excise Tax is determined to exceed the amount taken into
account hereunder in calculating the Gross-Up Payment (including by reason of
any payment the existence or amount of which cannot be determined at the time of
the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess (plus any interest, penalties or additions payable by the
Executive with respect to such excess) within five (5) business days following
the time that the amount of such excess is finally determined. The Executive and
the Company shall each reasonably cooperate with the other in connection with
any administrative or judicial proceedings concerning the existence or amount of
liability for Excise Tax with respect to the Total Payments.
7. MISCELLANEOUS
(a) NO EMPLOYMENT AGREEMENT. This Agreement does not
constitute a contract of employment or impose on the Company any obligation to
retain the Executive as an employee.
(b) DEDUCTIONS AND WITHHOLDING. The Executive agrees that the
Company shall withhold from any and all compensation required to be paid to the
Executive pursuant to this Agreement all federal, state, local and/or other
taxes which the Company determines are required to be withheld in accordance
with applicable statutes and/or regulations from time to time in effect.
(c) WAIVER AND RELEASE. The Executive acknowledges that (i)
the Change-in-Control Payment is in excess of the amounts that the Executive
would otherwise be entitled to receive under any employment or severance
agreement, plan, program or arrangement of the Company or between the Company
and the Executive and (ii) the Company has no obligation to enter into this
Agreement. In consideration of the Company assuming these additional obligations
and entering into this Agreement,
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the Executive agrees to execute a customary release of all claims related to the
Executive's employment or termination thereof, in substantially the same form as
annexed hereto other than any modifications which may be required to effectuate
such release based upon any changes in law.
(d) ARBITRATION. 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.
(e) LEGAL FEES. The Company or the successor shall pay to the
Executive all reasonable legal fees and expenses incurred by the Executive in
disputing in good faith any issues hereunder relating to the termination of the
Executive's employment, in seeking in good faith to obtain or enforce any
benefit or right provided by this Agreement or in connection with any tax audit
or proceeding to the extent attributable to the application of Section 4999 of
the Code to any payment or benefit provided hereunder. Such payments shall be
made within 30 days after delivery of the Executive's written request for
payment accompanied with such evidence of fees and expenses incurred as the
Company reasonably may require. The Company or the successor shall pay to the
Executive interest at the prime lending rate as announced from time to time by
The Chase Manhattan Bank on all or any part of the Change-in-Control Payment
that is not paid when due. The prime rate for each calendar quarter shall be the
prime rate in effect on the first day of the calendar quarter.
(f) NO DUTY TO MITIGATE/SET-OFF. The Company agrees that if
the Executive's employment with the Company or a successor is terminated during
the Term, the Executive shall not be required to seek other employment. Further,
the amount of any payment or benefit hereunder shall not be reduced by any
compensation earned by the Executive or any benefit provided to the Executive as
the result of employment by another employer or otherwise, except as provided in
Paragraph 5 or 7(g) hereof. The Company's obligations to make any payment or
provide any benefit hereunder shall not be affected by any circumstances,
including, without limitation, any
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set-off, counterclaim, recoupment, defense or other right which the Company or a
successor corporation may have against the Executive.
(g) OFFSET. The Change-in-Control Payment shall be reduced by
any severance payment made by the Company or any subsidiary of the Company to
the Executive pursuant to (i) any severance plan, program, policy or arrangement
of the Company or any subsidiary of the Company, (ii) the Employment Agreement
or any other employment agreement between the Company or any subsidiary of the
Company and the Executive, and (iii) any federal, state or local statute, rule,
regulation or ordinance.
(h) ENTIRE AGREEMENT. This Agreement embodies the entire
agreement of the parties with respect to any payment due the Executive in the
event of a Change-in-Control and supersedes any other prior oral or written
agreements between the Executive and the Company with respect thereto, except
that nothing herein shall be construed to adversely affect the Executive's right
to receive any non-duplicative payment or benefit to which he is entitled under
the Employment Agreement or any other employment agreement between the Company
or any subsidiary of the Company and the Executive in connection with his
termination of employment. No party may amend, modify or terminate this
Agreement without the express written consent of the other party.
(i) BINDING 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,
devises and legatees.
(j) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the Commonwealth of Kentucky without
reference to principles of conflict of laws.
(k) COUNTERPARTS. This Agreement may be executed and delivered
in separate counterparts, each of which when so executed and delivered shall be
deemed an original and all of which taken together shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
GENERAL CABLE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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ACCEPTED AND AGREED TO
as of the date first written above
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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