EMPLOYMENT AGREEMENT
Agreement made and entered into this 13th day of May, 1997, by
and among General Cable Corporation, a Delaware corporation (the "Company"),
GCC Corporation, a Delaware corporation and a wholly owned subsidiary of the
Company ("GCC"), and Xxxxxx X. Xxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive and GCC are parties to a severance
arrangement effective as of June 30, 1992, which is currently in effect (the
"Severance Arrangement"); and
WHEREAS, it is proposed that shares of the Company's Common
Stock, $.01 par value per share (the "Common Stock"), will be sold by the
Company's parent, Xxxxxxx Netherlands Cable B.V., in a public offering (the
"Public Offering"); and
WHEREAS, effective upon consummation of the Public Offering
(the "Effective Date") it is intended that the Severance Arrangement be
terminated and that this Agreement become effective;
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Term of Employment.
(a) Commencing on the Effective Date, the Company shall employ
the Executive, and the Executive shall accept 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 second
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.
(b) If the consummation of the Public Offering does not occur
on or before October 31, 1997, this Agreement shall terminate and the Severance
Arrangement shall remain in full force and effect in accordance with its terms.
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2. Capacities, Duties and Authority.
(a) Effective on the Effective Date, the Executive shall be
elected, and throughout the Employment Period the Executive shall be entitled to
serve as, Executive Vice President, General Counsel and Secretary of the
Company, GCC, GK Technologies, Incorporated, a New Jersey corporation ("GK"),
General Cable Industries, Inc., a Delaware corporation ("Industries"), and such
other affiliates of the Company, GCC, GK or Industries as the Board of Directors
of the Company (the "Company's Board") shall request. The Company, GCC, GK,
Industries and such other affiliates are hereinafter referred to collectively as
the "Group".
(b) In his capacity as Executive Vice President, General
Counsel and Secretary 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
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of the Company's President, 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 Two Hundred and Twenty-Five Thousand
Dollars ($225,000), 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 1997 Incentive Bonus Program and any performance-based
annual bonus program for senior executives of the Company for fiscal years after
1997 (a "Future Bonus Plan") on such terms and conditions as determined in the
discretion of the Compensation Committee.
4. Employee Benefit Programs.
(a) During the Employment Period, the Executive shall be
entitled to participate in and shall have the
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benefit of all vacation, 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 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 any fringe benefits provided to the member
of the Group's senior-level executives 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 stockholder of the Company
has approved the adoption of, the General Cable Corporation Long-Term Stock
Incentive Plan (the "Stock Incentive Plan"). As soon as practicable after the
Effective Date, the Company agrees to recommend to the Company's Board that the
Executive be granted under the Stock Incentive Plan a ten-year non-qualified
option to purchase 33,000 shares of Common Stock at the initial Public Offering
price of the Common Stock (the "Option"). The exercise price of the Option shall
be equal to the initial Public Offering price. The Option shall vest and
(subject
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to acceleration as provided herein or in the Change-in-Control Agreement
referred to below) be fully exercisable on the third anniversary of the
Effective Date in accordance with the terms of the Stock Incentive Plan.
6. 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
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Company's President and effective immediately upon the 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
President, which demand specifically identifies the
manner in which the Company's President 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
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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
President;
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 President may elect by giving written
notice to
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the Executive), in the event that the Executive has Good
Reason, which for purposes of this Agreement shall mean the
occurrence at any time of any of the following without the
Executive's prior written consent:
(A) removal from the position of Executive Vice President
or General Counsel 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 6(d), a reduction in
the Executive's Base Salary payable pursuant to
Paragraph 3(a) hereof or
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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 President;
For purpose 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
10
days of the giving of written notice of such
exercise.
(b) Obligations of the Company upon Termination of Employment.
(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) the 1997 Incentive Bonus or any bonus
payable pursuant to any Future Bonus Plan,
to the extent earned but not paid with
respect to any year prior to the year in
which the Executive's death occurs;
(D) a pro rata portion (based on the number
of days worked) of the bonus payable
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under the 1997 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;
(E) immediate vesting of and lapsing of
restrictions on all unvested Restricted
Stock and any other shares of restricted
Common Stock held by the Executive on the
date of his death;
(F) immediate vesting of the Option and all
other 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
(G) such additional benefits as may be provided
by the then existing plans, programs and/or
arrangements of the Company.
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(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:
(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) the 1997 Incentive Bonus or any bonus
payable pursuant to any Future Bonus Plans,
to the extent earned but not paid with
respect to any year prior to the year in
which the Executive's termination of
employment occurs;
(D) a pro rata portion (based on the number
of days worked) of the bonus payable
under the 1997 Incentive Bonus Plan or
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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;
(E) immediate vesting of and lapsing of
restrictions on all unvested Restricted
Stock and any other shares of restricted
Common Stock held by the Executive on the
date of his Disability;
(F) immediate vesting of the Option and all
other 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
(G) such additional benefits as may be provided
by the then existing plans, programs and/or
arrangements of the Company.
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(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; and
(C) 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:
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(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) the 1997 Incentive Bonus or any bonus
payable pursuant to any Future Bonus Plan,
to the extent earned but not paid with
respect to any year prior to the year in
which the Executive's termination of
employment occurs;
(D) a lump sum amount equal to one 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
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bonus under the 1997 Incentive Bonus
Plan or any Future Bonus Plan, as the
case may be, for the year of
termination;
(E) immediate vesting of and lapsing of
restrictions on all unvested Restricted
Stock and any other shares of restricted
Common Stock held by the Executive on the
date of the termination of his employment;
(F) immediate vesting of the Option and all
other 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;
(G) 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
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same terms and conditions as other
executives under such plans, programs and/or
arrangements until the earlier of one year
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
(H) 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.
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(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; and
(C) such additional benefits as may be provided
by the then existing plans, programs and/or
arrangements of the Company.
(c) Any payment under Paragraph 6(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
19
to be provided by the Company. The Company's obligations to make the payments
under Paragraph 6(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 President 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 President to ascertain whether such
circumstances are substantiated. During such suspension, the Executive shall
continue to be paid all compensation and provided all benefits hereunder;
provided, however, that if the Executive has been indicted or otherwise formally
charged by governmental authorities with any felony, the Company's
20
President 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 President.
7. 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 business enterprise other
than a member of the Group, except in furtherance of his
responsibility during the Employment Period; or
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(ii) authorize or assist in the taking of such action
by any third party.
For purposes of this Paragraph 7(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 7(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 one (1)
year 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
22
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
23
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 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
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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.
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(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 7, 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 bond, with or without surety, and that such an injunction
will not work an undue hardship on him.
(f) The provisions of this Paragraph 7 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 7 is invalid or unenforceable, the remainder of such provisions shall
not thereby be
26
affected and shall be given full effect without regard to the invalid
provisions. If any court construes any of the provisions of this Paragraph 7, 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.
8. 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.
9. Release.
In consideration of the Company's granting of the Option, the
Executive releases GCC, the Company, Xxxxxxx PLC, and any of their respective
past and present officers, directors, shareholders, subsidiaries, employees,
agents and affiliates from any and all claims, demands and causes of
27
action whatsoever related to the Executive's employment prior to the Effective
Date by GCC and its affiliates, in law or equity, known or unknown, accrued or
unaccrued, past, present or future, relating to any acts or omissions during all
periods ending prior to the Effective Date, whether arising out of any other
arrangements or understandings, or otherwise; provided, however, that neither
this release nor the provisions of Paragraph 11(b) hereof shall adversely affect
(i) the Executive's rights to any Base Salary (net of withholding taxes) or
vacation provided for therein that is accrued but unpaid as of the Effective
Date; (ii) the Executive's rights with respect to Xxxxxxx PLC options previously
granted to the Executive, which shall remain exercisable in accordance with the
terms of the Xxxxxxx PLC (No. 3) U.S. Executive Share Option Scheme, if any;
(iii) the Executive's rights under existing plans, programs and/or arrangements
of the Company which are accrued but unpaid as of the Effective Date; (iv) the
Executive's rights to indemnification under any indemnification agreement,
applicable law and the certificates of incorporation and by-laws of the Company
and other members of the Group, or the Executive's rights under any director's
and officers' liability insurance policy covering the Executive, in each case
arising out of or relating the Executive's employment
28
prior to the Effective Date; or (v) the Executive rights under this Agreement.
10. Indemnification.
To the fullest extent permitted by law and the Company's
certificate of incorporate 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.
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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 (subject to Paragraph 9 hereof) 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 Severance Arrangement, other than the
Change-in-Control Agreement, of even date herewith, between the Company, GCC and
the Executive (the "Change-in-Control Agreement"); provided, however, that 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.
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(c) All differences, claims or matters in dispute arising out
of this Agreement, the breach hereof or otherwise arising between the Company or
any of its affiliates and the Executive shall, at the election of either party,
by notice to the other, be submitted to arbitration by the American Arbitration
Association or its successor, in Cincinnati, Ohio. Such arbitration shall be
governed by the then existing rules of the American Arbitration Association and
the laws of the State of Kentucky as then in effect. Any arbitration conducted
pursuant to the provisions of this Agreement shall be conducted by a recognized
independent and impartial arbitrator mutually agreed to by the parties or, if
they cannot agree within thirty (30) days after the initial demand for
arbitration, by three arbitrators, one chosen by the Company, one chosen by the
Executive and the third (who shall be a recognized independent and impartial
arbitrator and who shall act as chairperson and will be compensated at a rate
generally equivalent to his or her normal billing rate or compensation) selected
by the two so chosen; provided, that if either party fails to appoint an
arbitrator within 20 days of written notice by the other that it has appointed
an arbitrator, then the arbitration shall be conducted by an arbitrator selected
by the American
31
Arbitration Association in accordance with its then existing rules. If the
arbitrators selected by the parties fail to agree on the third arbitrator within
thirty (30) days of the appointment of the second arbitrator, the third
arbitrator shall be selected by the American Arbitration Association in
accordance with its then existing rules. The impartial arbitrator shall set a
time for hearing within sixty (60) days of his/her selection. Each party shall
have an opportunity to present evidence on the issues in dispute before the
arbitrator and each party may be represented by legal counsel. The decision of
the arbitrator(s) shall be rendered within thirty (30) days of the close of the
hearing. The fees and expenses of the impartial arbitrator shall be shared
equally by the parties and each party shall bear the cost of any arbitrator
chosen unilaterally by that party. Any determination reached or award granted
pursuant to arbitration shall be final, non-appealable and binding on the
parties. The judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction. The parties acknowledge that their agreement
pursuant to the terms of this Paragraph 11(c) to submit the resolution of all
disputes arising out of this Agreement to arbitration by the American
Arbitration Association is the result of their mutual and voluntary negotiation
and agreement, and is not
32
intended to and does not constitute a "condition or precondition of employment"
within the meaning or interpretation of that phrase as used in Kentucky Revised
Statutes 336.700(2).
(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 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
33
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: President
If to the Executive:
Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxx
Xxxxxxxxxx, XX 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
34
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 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
35
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 this _____ day of May, 1997, to become effective on the
Effective Date.
GENERAL CABLE CORPORATION
By:
-------------------------
Xxxxxxx Xxxxxxxxxx
Chairman, Chief Executive
Officer and President
GCC CORPORATION
By:
-------------------------
Xxxxxxx Xxxxxxxxxx
Chairman, Chief Executive
Officer and President
-------------------------
Xxxxxx X. Xxxxxx
36
