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EXHIBIT 10.35
EMPLOYMENT AGREEMENT
This agreement (the "Agreement") is made and entered into as of March
5, 1996 by and between International Wire Group, Inc. ("Employer") and Xxxxxx
X. Xxxxxxxxx ("Employee").
W I T N E S S E T H :
WHEREAS, Employer is an indirect wholly-owned subsidiary of
International Wire Holding Company ("International").
WHEREAS, Employer desires to engage the services of Employee upon the
terms set forth herein; and
WHEREAS, Employee desires to be employed by Employer and 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 Executive
Vice President of the Wire Division of Employer (the "Position"), and
Employee agrees to be employed by Employer in such Position, for a
period of thirty-six (36) months ending on the 4th day of March, 1998
(the "Termination Date"), unless terminated earlier as provided herein
(the "Employment Period").
(b) Duties. Employee in the Position shall be subject to the
direction and supervision of the Chief Executive Officer of Employer
or his designee (the "CEO") and shall have those duties and
responsibilities which are assigned to him during the Employment
Period by the CEO consistent with the Position, provided that the CEO
shall not assign any greater duties or responsibilities to the
Employee than are necessary for the Employee's faithful and adequate
performance of the duties and responsibilities assigned. The parties
expressly acknowledge that the Employee shall devote all of Employee's
business time and attention to the transaction of the Employer's
businesses as is 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 & BENEFITS.
(a) Salary. Employer shall pay to Employee during the
Employment Period a salary as basic compensation for the services to
be rendered by Employee hereunder. The initial amount of such basic
compensation shall be One Hundred Ninety Thousand Dollars
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($190,000) per year. Such salary shall be reviewed from time to time
by the CEO of the Employer and may be increased in the CEO's sole
discretion. Such salary shall accrue and be payable in accordance with
the payroll practices of Employer in effect from time to time. All
such payments shall be subject to deduction and withholding 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 thirty-fifty percent (35%) of Employee's annual
basic compensation as set forth above in accordance with the Executive
Incentive Compensation Plan.
(c) Benefits. During the Employment Period, Employee shall be
entitled to such other benefits as are determined by the CEO,
including without limitation, group life, hospitalization and other
insurance and paid vacations.
(d) Auto Allowance. Employer shall pay Employee an auto
allowance 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) Tax Preparation and Executive Physical. Employer will be
responsible annually for the reasonable cost of income tax preparation
and an executive physical examination.
(f) Other. Employer shall provide Employee such other group
insurance and retirement benefits similar to other employees at Vice
President level.
3. TERMINATION.
(a) Death or Disability. This Agreement shall terminate
automatically upon the death or total disability of Employee. For the
purpose of this Agreement "total disability" shall be deemed to have
occurred if Employee shall have been unable to perform the assigned
duties due to mental or physical incapacity for a period of three (3)
consecutive months or for any sixty (60) working days out of a six (6)
month consecutive period.
(b) Cause. Employer may terminate the employment of Employee
under this Agreement for Cause. For the purpose of this Agreement,
"Cause" shall be deemed to be fraud, dishonesty, competition with
Employer, unauthorized use of any of Employer's trade secrets or
confidential 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.
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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 or if Employee voluntarily terminates Employee's employment, no
further compensation shall be paid to Employee after the date of
termination.
(c) Termination Without Cause. If the employment of Employee
under this Agreement is terminated pursuant to Section 3(c) above,
Employee shall be entitled to continue to receive from Employer the
then current basic compensation hereunder [which shall not be less
than the amount specified in the second sentence of Section 2(a)
above] for a period of three hundred sixty-five (365) days or until
the Termination Date, whichever is a shorter period, such amount to
continue 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 to no other benefits.
5. EXPENSE REIMBURSEMENT. Upon submission of properly documented
expense account reports, Employer shall reimburse Employee for all reasonable
travel and entertainment expenses incurred by Employee in the course of his
employment with Employer.
6. ASSIGNMENT. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto except that this Agreement and all of the provisions hereof
may be assigned by Employer to any successor to all or substantially all of its
assets (by merger or otherwise) and may otherwise be assigned upon the prior
written consent of Employee.
7. CONFIDENTIAL INFORMATION.
(a) Non-Disclosure. During the Employment Period or at any time
thereafter, irrespective of the time, manner or cause of the
termination of this Agreement, 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
hereinafter defined) of Employer without the prior written consent of
the CEO.
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(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 Chief Executive Officer of Employer
thirty (30) days' written advance notice of voluntary
termination of employment with Employer. Such notice shall
include Employee's future employment or self-employment
intentions, and identification of the prospective employer and
of the general nature of the prospective employment or
self-employment, if known. Employer shall continue to pay the
then-current salary to Employee until the end of such notice
period.
(ii) To participate in an exit interview conducted by a
member of the personnel department of Employer and/or by a
representative of Employer, at the time of or prior to the
termination of employment with Employer.
(iii) That for two (2) years following the termination of
employment with Employer, Employee shall promptly notify
Employer of any change in the identification of Employee's
employer or the nature of such employment or of
self-employment.
(iv) That, subject to the conditions hereinafter stated,
Employee will not, within two (2) years after leaving the
employ of Employer, engage or enter into employment by, or into
self-employment or gainful occupation as, a Competing Business,
or act directly or indirectly as an advisor, consultant, sales
agent or broker for a Competing Business. As used herein,
"Competing Business" means a business which is engaged in the
manufacture, sale or other disposition of a product or service
or has under
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development a product or service which is in direct competition
with a product or service, whether existing or under
development, of the Employer. Employee acknowledges that
Employer does not have an adequate remedy at law in the event
Employee violates this provision and, therefor, Employee agrees
that in such an event, Employer shall be entitled to seek
equitable relief, including but not limited to injunctive
relieve and to withhold all payments due to Employee hereunder
pending a judicial determination of whether Employee has
violated this Agreement.
(v) The terms of 8(a)(i) - 8(a)(iv) shall apply whether
the termination is voluntary or involuntary for whatever
reason.
(b) Employer agrees:
(i) That within fifteen (15) business days after
receiving identification of the prospective employer, the
nature of the employment or self-employment pursuant to
Paragraph 8(a)(i) above, or any change therein pursuant to
Paragraph 8(a)(iii) above, Employer will advise Employee as to
whether such employment constitutes a Competing Business as
defined in Paragraph 8(a)(iv) above.
(ii) In the event Employer advises Employee that such
employment constitutes a Competing Business, to forward to
Employee at the end of each of the twenty-four (24) successive
calendar months following the month in which employment by
Employer terminates, a check in the amount equal to the full
monthly basic compensation of Employee (exclusive of extra
compensation of any kind) as of the date of employment
termination. If notice is received pursuant to Paragraph
8(a)(iii) and the Employer advises Employee that such
employment constitutes a Competing Business, the aforementioned
monthly checks shall be forwarded for the remaining number of
the aforesaid twenty-four (24) successive calendar months.
Provided, however, that all payments due under this Paragraph
8(b)(ii) shall not be required during any periods that Employee
is receiving payments under either Paragraphs 4(a) or 4(c).
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 3(b) above shall thereafter not apply.
10. AGREEMENT NOT TO SOLICIT EMPLOYEES. Employee agrees that, for a
period of two (2) years following the termination of the Employment Period,
Employee shall not, for himself or on behalf of any business engaged in a
business competitive with Employer, 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 neither the execution, delivery and performance of this Agreement
nor the passage of time, or both, will conflict
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with, result in a default, right to accelerate or loss of rights under any
provision of any agreement or understanding to which the Employee or, to the
best knowledge of Employee, any of Employee's affiliates are a party or by
which Employee, or to the best knowledge of Employee, Employee's affiliates may
be bound or affected.
12. CAPTIONS. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit or
amplify the provisions hereof.
13. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed delivered, whether or not
actually received, two days after being deposited in the United States mail,
postage prepaid, registered or certified mail, return receipt requested,
addressed to the party to whom notice is being given at the specified address
or at such other address as such party may designate by notice:
Employer: International Wire Group, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Employee: Xxxxxx X. Xxxxxxxxx
0000 Xxxxx 000 Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
14. INVALID PROVISIONS. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws, such
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance of this Agreement. In
lieu of each such illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
15. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the
entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, if any, relating
to the subject matter hereof. This Agreement may be amended in whole or in part
only by an instrument in writing setting forth the particulars of such
amendment and duly executed by an officer of Employer expressly authorized by
the CEO to do so and by Employee.
16. WAIVER. No delay or omission by any party hereto to exercise
any right or power hereunder shall impair such right or power to be construed
as a waiver thereof. A waiver by any of the parties hereto of any of the
covenants to be performed by any other party or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant herein contained. Except as otherwise expressly set forth herein, all
remedies provided for in this
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Agreement shall be cumulative and in addition to and not in lieu of any other
remedies available to any party at law, in equity or otherwise.
17. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same agreement.
18. GOVERNING LAW. This Agreement shall be construed and enforced
according to the laws of the state of Missouri.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
EMPLOYER: EMPLOYEE:
INTERNATIONAL WIRE GROUP, INC.
By /s/ XXXXX X. XXXXX /s/ XXXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxx, Chairman Xxxxxx X. Xxxxxxxxx
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AMENDMENT TO
EMPLOYMENT AGREEMENT
This Amendment (the "Amendment") is made and entered into as of this
6th day of May, 1996 by and between International Wire Group, Inc. ("Employer")
and Xxxxxx X. Xxxxxxxxx ("Employee") and amends that certain Employment
Agreement made and entered into as of May 5, 1996 (the "Agreement").
W I T N E S S E T H :
WHEREAS, Employer and Employee have previously entered into the
Agreement which contained a typographical error; and
WHEREAS, Employer and Employee desire to correct the typographical
error in the Agreement by this Amendment.
NOW THEREFORE, Employer and Employee in consideration of the need to
correct the Agreement do hereby agree as follows:
1. That the reference in the last line of Section 9 found on
Page 5 of the Agreement is hereby amended to refer to
Paragraph 8(b) rather than to Paragraph 3(b).
Other than the above correction, the Agreement shall remain in full
force and effect without modification or change.
IN WITNESS WHEREOF, the parties have hereunto executed this Amendment
to the Agreement as of the date first above written.
EMPLOYER: EMPLOYEE:
INTERNATIONAL WIRE GROUP, INC.
By /s/ XXXXX X. XXXXX /s/ XXXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxx, Chairman Xxxxxx X. Xxxxxxxxx
