Exhibit (c)(2)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated November 20, 1995 ("Agreement") among
Xx. Xxxxx X. Xxxx, a resident of Sanford, North Carolina ("Employee"),
Xxxxxxx Acquisition Corp., a North Carolina corporation ("KAC"), and
Xxxxxxx Corporation, a Delaware corporation ("Xxxxxxx").
WHEREAS, the Employee is currently the President and Chief
Executive Officer of Communication Cable, Inc., a North Carolina
corporation ("CCI"). Xxxxxxx has in the past entered into discussions
with CCI regarding its proposed acquisition of CCI and presently intends
to again pursue such an acquisition, through KAC, subject to entering
into satisfactory arrangements for its acquisition of the common stock
of CCI held by the Employee and satisfactory arrangements for the
Employee's employment with KAC if and when such acquisition is
consummated. Contemporaneously herewith, Xxxxxxx, KAC and the Employee
have entered into a Stock Option Agreement relating to KAC's purchase of
the Employee's stock in CCI. The purpose of this Agreement is to set
forth the terms of the Employee's employment with KAC in the event that
such an acquisition of CCI is consummated.
WHEREAS, it is understood that on the date hereof the Employee
continues to be employed by CCI as its President and Chief Executive
Officer and continues to be a director of CCI. Nothing herein is
intended to interfere with the due and proper performance of the
Employee's duties to CCI in such positions or to create any employment
relationship between the Employee and KAC or Xxxxxxx prior to the
Commencement Date referred to herein. It is further understood that, if
such Commencement Date does not occur prior to January 1, 1997 (or such
later date to which the parties hereto may hereafter mutually agree),
then at the Employee's option this Agreement shall become null and void
and neither party shall have any obligations to the other hereunder,
except for the obligations of KAC and Xxxxxxx under Section 6 (which
shall continue).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
1. Employment; Performance Guarantee
KAC agrees to employ the Employee, and the Employee agrees to enter
into the employ of KAC on the Commencement Date (as defined in Section
3), on the terms and conditions hereafter set forth. Xxxxxxx and KAC
represent and warrant to the Employee that Xxxxxxx owns all of the
issued and outstanding capital stock of KAC. Xxxxxxx hereby guarantees
to the Employee the faithful and timely performance of the obligations
of KAC stated in this Agreement.
2. Duties
During his employment hereunder, the Employee shall devote his full
business time, skill, energies, judgment, knowledge and efforts to
advancement of the best interests of KAC and its subsidiaries and the
performance of such executive duties on behalf of KAC and its
subsidiaries as the Board of Directors of KAC may assign to him from
time to time. In no event shall such duties
require the Employee to relocate outside of Sanford, North Carolina
during the term of this Agreement without the Employee's consent. The
requirement that the Employee devote his full business time to KAC
shall not be construed to prevent the Employee from investing in
securities and other kinds of personal property, tangible and
intangible, and real estate or from engaging in church, charitable
or other community activities that do not, singly or in the aggregate,
materially impair his ability to fulfill his responsibilities under
this Agreement.
3. Commencement Date; Term
This Agreement shall become effective upon the first to occur of
(i) the purchase by Xxxxxxx or KAC, or by another person controlling,
controlled by or under common control with Xxxxxxx or KAC (a "Xxxxxxx
Affiliate"), of no less than that number of shares of CCI, as would then
have voting power sufficient to elect a majority of the directors of
CCI, (ii) the purchase by Xxxxxxx, KAC or a Xxxxxxx Affiliate of all or
substantially all of the assets of CCI or (iii) a merger of CCI with or
into Xxxxxxx, KAC or a Xxxxxxx Affiliate (the date of the first to occur
of such events being the "Commencement Date"). The term of the
Employee's employment hereunder shall be the three years immediately
following the Commencement Date, unless terminated earlier pursuant to
Section 5. If the Commencement Date shall not have occurred on or
before December 31, 1996 (or such later date to which the parties shall
have agreed in writing), then, at the Employee's option, by written
notice to KAC and Xxxxxxx, this Agreement shall be null and void and
neither party shall have any obligations to the other hereunder, except
for the obligations of KAC and Xxxxxxx under Section 6 (which shall
continue).
4. Compensation and Benefits
KAC shall pay or cause to be paid to the Employee, as compensation
for all of the services to be rendered by him hereunder during the term
hereof, the following salary and bonus: in and for the first year
following the Commencement Date, $300,000 in the aggregate; in and for
the second year following the Commencement Date, $330,000 in the
aggregate; in and for the third year following the Commencement Date,
$363,000 in the aggregate. The Employee and his spouse also will
receive medical and health insurance benefits consistent with the
insurance benefits that Employee and his spouse are currently entitled
to receive from CCI. The salary and bonus payments and other benefits
described herein shall in all events be paid and made available to the
Employee in times, place and manner consistent with CCI's current
practices; provided, that for such purposes the Employee's salary shall
be deemed to be $200,000 for the first year following the Commencement
Date, $230,000 for the second year and $263,000 for the third year, and
Employee shall be entitled to a bonus of $100,000 payable on each
December 15 within the three years following the Commencement Date.
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5. Termination of Employment
Notwithstanding Section 3, the term of the Employee's employment
hereunder shall terminate on the first to occur of (i) the date that is
three years after the Commencement Date and (ii) any of the events
described below in this Section 5.
(a) Death. In the event of the Employee's death, his employment
shall terminate automatically, effective as of the date of death, and
KAC shall pay to his estate or other beneficiary designated by him to
KAC, in the times, place and manner mentioned in Section 4, the salary
and bonus that otherwise would have been paid to him pursuant to Section
4 for the remainder of the three-year term mentioned in this Section 5.
In the event that the Employee shall die after the termination of his
employment hereunder but prior to the expiration of the three-year term
mentioned in this Section 5, then the compensation and benefits that
would otherwise continue to be payable to him after the termination of
his employment for the remainder of such three-year term shall be
payable to the Employee's estate or to such other beneficiary as shall
have been designated by him to KAC. The benefits payable to him after
termination of employment include the medical and health insurance
benefits for his spouse mentioned in Section 4, and after the Employee's
death such insurance benefits for his spouse shall be continued for the
remainder of such three-year term.
(b) Disability. If the Employee, due to physical or mental
illness, shall be unable to perform substantially all of his duties for
a continuous period of three months, then the Employee may by notice
terminate his employment effective as of a date not less than 30 days
after the date such notice is given. In such event, the compensation
and benefits described in Section 4 shall be payable to the Employee, in
the times, place and manner mentioned in Section 4, for the remainder of
the three-year term mentioned in this Section 5.
(c) Termination by Employee. At any time after the six-month
period commencing with the Commencement Date, the Employee may by notice
terminate his employment effective as of a date not less than 30 days
after the date such notice is given. Notwithstanding the occurrence of
any such termination, the compensation and benefits described in Section
4 shall be payable to the Employee, in the times, place and manner
mentioned in Section 4, for the remainder of the three-year term
mentioned in this Section 5.
(d) Termination by KAC. The Employee's employment may be
terminated at any time by KAC with or without notice and with or without
cause. Notwithstanding the occurrence of any such termination, the
compensation and benefits described in Section 4 shall be payable to the
Employee, in the times, place and manner mentioned in Section 4, for the
remainder of the three-year term mentioned in this Section 5.
6. Indemnification.
KAC and Xxxxxxx, jointly and severally, agree to indemnify the
Employee and to hold the Employee harmless from and against any loss,
liability, cost or expense (including reasonable
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attorneys' fees) incurred by the Employee arising out of any claim
by any person or entity (other than a party to this Agreement) resulting
from the execution, delivery or performance of this Agreement, except that
neither KAC nor Xxxxxxx shall have any such responsibility relative to
any loss, liability, cost or expense that the Employee may incur as a
result of Employee's gross negligence or intentional misconduct or as a
result of the compensation or benefits paid or made available to the
Employee following the termination of his employment hereunder.
7. Confidentiality
The Employee acknowledges that he has had and will have access to
certain information related to the business, operations, future plans
and customers of KAC, the disclosure or use of which could cause KAC
substantial losses and damages. Accordingly, the Employee covenants
that, during the term of his employment with KAC and thereafter, he will
keep confidential all information and documents furnished to him by or
on behalf of KAC and not use the same to his advantage, except to the
extent such information or documents are or thereafter become lawfully
obtainable from other sources or are in the public domain through no
violation of this Section 7 on his part or as is consented to in writing
by KAC. For the purposes of this Section 7 only, the term "KAC" shall
mean CCI and any and all persons that control or are controlled by, or
are under common control with, KAC.
8. No Conflict with Any Other Agreement
The Employee represents and warrants to KAC and Xxxxxxx that the
execution of this Agreement and the performance of his duties and
obligations hereunder will not breach or cause a default under any other
agreement to which he is a party or by which he is bound and that he is
not now subject to any covenant against competition or similar covenant
that would affect the performance of his duties hereunder. It is
understood, however, that the Employee shall have no duties to KAC or
Xxxxxxx hereunder prior to the Commencement Date and that he may
continue his employment with CCI until that time.
9. No Assignment
This Agreement shall in no way be subject to assignment by the
Employee, KAC or Xxxxxxx; provided, however, that (a) KAC may assign any
or all of its rights or duties hereunder to any person who is a Xxxxxxx
Affiliate and (b) Xxxxxxx may assign its duties hereunder by operation
of law in a merger, reorganization or other similar transaction to a
successor to substantially all of its business and assets.
10. Notices
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if
delivered in person, by overnight courier, by facsimile transmission,
telexed or mailed by certified or registered mail, postage prepaid,
return receipt
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requested, as follows (or at such other address for a party as shall be
specified by like notice, provided that such a notice shall be effective
only upon receipt thereof):
if to KAC or Xxxxxxx, to:
Xxxxxxx Corporation
0 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
if to the Employee, to:
Xx. Xxxxx X. Xxxx
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
NationsBank Corporate Center
Suite 4200
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: X. Xxxxxxxx Xxxxxx III, Esq.
Fax: (000) 000-0000
(or to such other address as any party shall have furnished to the
others by like notice).
A notice shall be effective as of the date of such delivery or mailing,
as the case may be.
11. Entire Agreement
This Agreement constitutes the only agreement and understanding
between KAC or Xxxxxxx, on the one hand, and the Employee, on the other
hand, relative to the subject of the Employee's employment by Xxxxxxx or
any Xxxxxxx Affiliate; and there are no promises, representations,
conditions, provisions or terms related thereto other than those set
forth herein. This Agreement supersedes all previous understandings,
agreements and representations, written or oral, between
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KAC or Xxxxxxx, on the one hand, and the Employee, on the other hand,
regarding such employment.
12. Governing Law
This contract shall be governed by, and construed in accordance
with, the laws of the State of North Carolina.
13. Waiver; Amendment
No waiver in any instance by either party of any provision of this
Agreement shall be deemed a waiver by such party of such provision in
any other instance or a waiver of any other provision hereunder in any
instance. This Agreement cannot be amended, supplemented or otherwise
modified except in a writing signed by all of the parties hereto.
14. Counterparts
This Agreement may be executed in any number of counterparts, each
of which, when executed, shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
XXXXXXX ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Its: President
XXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Its: President and Chief Operating Officer
/s/ Xxxxx X. Xxxx (L.S.)
Xxxxx X. Xxxx
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