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EXHIBIT 10.28
EMPLOYMENT AGREEMENT
This agreement (the "Agreement") is made and entered into as of
November 13, 1999 by and between International Wire Group, Inc. ("Employer") and
Xxxxx X. Xxxxxx ("Employee").
W I T N E S S E T H :
WHEREAS, Employer is a direct wholly-owned subsidiary of International
Wire Holding Company ("International");
WHEREAS, Employer desires to continue to retain the services of
Employee upon the terms set forth herein; and
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 Vice President - Finance of
Employer (the "Position") and Employee agrees to be employed by Employer in such
Position for a period of one (1) year ending on the 12th day of November, 2000
(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 one (1) year period
until terminated.
(b) Duties. Employee in the Position shall be subject to the direction
and supervision of the President or his designee and shall have those duties and
responsibilities which are assigned to him during the Employment Period by the
President consistent with the Position, provided that the President 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.
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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 Forty Four Thousand Dollars ($244,000) per year. Such salary shall be
reviewed from time to time by the Chief Executive Officer ("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 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 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 six (6) 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) above 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
Section 2(a) above] until the longer of one (1) year 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.
(d) In the event the Employment of Employee is terminated for any
reason other then death or disability or cause as provided herein above, within
one (1) year of a change of control of Employer or of International Wire Holding
Company (the parent of Employer), Employee shall be entitled to continue to
receive from Employer or its successor in interest the then current basis
compensation hereunder [but not less then the amount specified in Section 2(a)
above] for one (1) year from the date of such termination.
As used herein the term "change of control" shall mean be deemed to
have occurred if, subsequent to the November 13, 1999 (A) any "person" (as such
term is defined in Section 13(d) of the Exchange Act), other than Hicks, Muse,
Xxxx & Xxxxx Equity Fund II, L. P. and/or Xxxxx & Partners Inc., and/or their
respective affiliates, employees, officers, directors or successors (the "HMTF
Group"), is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing a majority of the combined voting power
of the Company's then outstanding voting securities, or (B) a majority of the
Board of Directors shall consist of persons who are not continuing Directors.
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,
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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
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 hereinafter 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 President 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, identification of the prospective employer and 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.
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(iii) That for one (1) year following the termination of the
Employment, 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) Subject to the conditions hereinafter stated, Employee will
not, within one (1) year 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 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 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 twelve (12) successive calendar months following the month
in which Employment by Employer terminates, 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. If notice is
received pursuant to Paragraph 8(b) 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 twelve (12) 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) or payment for service
from 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
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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 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 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.
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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.
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 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/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxx, Chairman Xxxxx X. Xxxxxx
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