AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made and
entered into as of this 1st day of September, 2006 (the “Effective Date”) by and between
XXXXXXX CABLE, INC., a Delaware corporation (the “Company”), on the one hand, and
XXXXXXX X. XXXXXXXX (the “Employee”), on the other hand. (The Company and the Employee
are sometimes referred to herein together as the “Parties”)
WITNESSETH
WHEREAS, the Company is engaged in the business of manufacturing wire and
cable products (the “Business”);
WHEREAS, the Company and the Employee are parties to that certain Employment
Agreement dated December 30, 1999 (the “Original Agreement”), which the Parties desire
to amend and restate in its entirety on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Restatement of the Original Agreement. The Parties do hereby amend and
restate the Original Agreement in its entirety as set forth herein. Upon the Effective
Date, the Original Agreement shall be superseded in its entirety and of no further force
or effect.
2. Employment. The Company hereby agrees to employ the Employee for the Term
of this Agreement (as defined in Section 5 hereof) and the Employee hereby
accepts such employment.
3. Position and Duties.
(a) Position. During the Term, the Employee shall serve as the Senior Vice
President — Operations of the Company, overseeing certain day to day operations of the
Company and any person or entity that directly, or through one or more intermediaries is
controlled by the Company (collectively, the “Affiliates”) and shall have and perform
the duties, responsibilities and authority commensurate with such position, which are
enumerated from time to time by the Company’s Board of Directors and/or its Chief
Executive Officer. Such duties, responsibilities and authority shall include, but not be
limited to, the following:
(i) the authority to employ (and terminate), any and all subordinate
officers (of whatever position), any general managers, managers, supervisors and
other employees of the Company or its Affiliates as the Employee shall deem
necessary or appropriate for the conduct of the Business and its Affiliates; to
delegate to such employees such authority as he shall determine, all consistent
with the employee policies and
procedures promulgated by the Company’s Board of Directors and the Chief
Executive Officer; and
(ii) the authority to make or otherwise authorize expenditures by and to
contract liabilities for the Company and the Affiliates in the ordinary course of
business; and
(iii) the authority to make any and all decisions of a material nature for
the Company and the Affiliates subject only to the approval of the Company’s
Board of Directors and Chief Executive Officer.
(b) Efforts. The Employee shall devote his full working time, diligent
efforts and attention (except for permitted vacation periods and periods of illness or
other incapacity) to the business and affairs of the Company as may be required to
perform his duties and responsibilities in a diligent and businesslike manner.
4. Salary and Benefits.
(a) Base Salary. During the Term, the Company shall pay to the Employee a
minimum base salary of $300,000 per year. The Company shall pay such salary in equal
bi-weekly installments on the Company’s regular pay days. Regular installments of base
salary shall be paid less all applicable taxes, social security payments and other items
that the Company is required by law to withhold or deduct therefrom.
(b) Automatic Annual Raises. During the Term, the Employee’s base salary
shall be increased, effective as of each anniversary of the Effective Date, by a
percentage amount equal to the percentage increase in the Chicago area Consumer Price
Index as reported by the U.S. Department of Labor.
(c) Merit Raises. The Board of Directors of the Company may, in its
absolute and sole discretion, increase the salary payable to Employee for merit.
(d) Performance Bonuses. During each year of the Term, the Employee shall be
entitled to receive cash performance bonuses in an amount up to 100% of the Employee’s
base salary, as determined by the Company’s Board of Directors based upon the attainment
of performance goals conveyed to the Employee. The cash performance bonus may be
increased in any year in the discretion of the Compensation Committee.
(e) Employee Benefits. In addition to the compensation described above,
the Company will provide or offer for the Employee’s participation such benefits (other
than bonus, incentive compensation and severance benefits) as are generally provided or
offered by the Company to its other similarly positioned executive officers, including,
without limitation, retirement benefits, health/major medical insurance and welfare
benefits, sick days and other fringe benefits (collectively,
“Benefits”), if and to the
extent that the Employee is eligible to participate in accordance with the terms of the
applicable Benefit plan or program generally. These Benefits shall include:
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(i) group health, life and disability insurance (to the extent offered to
similarly positioned executive officers);
(ii) participation in any Company sponsored retirement savings or pension
plan (to the extent such plans are in existence and participation is offered to
similarly positioned executive officers);
(iii) participation in all stock or stock option plans (to the extent such
plans exist);
(iv) use of a company car comparable to the car presently being driven by
the Employee;
(v) business expense allowances;
(vi) paid vacation accruing at the rate of four (4) weeks per
year;
(vii) paid religious and other holidays to the extent provided under the
Company’s personal leave policies; and
(ix) such other perquisites as the Company and the Employee shall agree.
(f) Supplemental Disability Insurance. In addition to the Benefits herein
provided for, the Company shall purchase and maintain in full force and effect one or
more policies of supplemental disability insurance, with benefits consistent with those
provided to the Employee as of the date hereof.
(g) Equity and Option Grants. In addition to all other salary and benefits
herein provided, the Company hereby agrees that Employee shall be entitled to participate
in restricted stock and stock option plans established for the benefit of the Company’s
employees.
(h) Expense Reimbursement. The Company shall reimburse the Employee for all
reasonable business expenses properly incurred by the Employee in the ordinary course of
performing the Employee’s duties and responsibilities hereunder, subject to the
Company’s normal and customary practices and policies as are in effect from time to time
with respect to travel, entertainment and other business expenses (including the
Company’s reasonable requirements with respect to prior approval, reporting and
documentation of such expenses)
5. Term and Termination.
(a) Term. Subject to the rights of termination set forth below, the Term of
the Employee’s employment under this Agreement shall be for a rolling three (3) year
period (i.e., upon completion of each day of the Employee’s employment, the term of his
employment automatically shall be extended for one additional day), commencing on the
Effective Date (the ‘Term”).
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(b) Termination for Cause. The Company may terminate the Employee’s
employment under this Agreement at any time upon written notice for “Cause.” For the
purposes of this Agreement, Cause shall mean:
(i) the gross neglect or willful failure by the Employee to perform his
duties and responsibilities in all material respects as set forth hereunder,
after a written demand for substantial performance is delivered to the Employee
by the Company’s Board of Directors which demand specifically identifies the
manner in which the Company’s Board of Directors believes that the Employee has
not so performed his duties and which demand is not met within thirty (30) days
of its delivery to Employee;
(ii) any act of fraud or embezzlement by the Employee in connection with the
Company or its affiliates;
(iii) a willful and material breach of this Agreement by the Employee which
the Employee fails to cure within thirty (30) days of the Employee’s receipt of
written notice of such breach; or
(iv) the Employee’s conviction or entering into a plea of nolo contendere to
(A) a crime involving moral turpitude; or (B) any other crime materially
impairing or materially hindering the Employee’s ability to perform his duties
for the Company.
(c) Voluntary Termination By The Employee With Good Reason. The
Employee may, at any time within 90 days of the occurrence of any event which constitutes
“Good Reason” upon written notice, terminate his employment under this Agreement with
“Good Reason”.
(i) For the purposes of this Agreement, “Good Reason” shall mean without the
prior written consent of the Employee:
(A) a reduction in the base salary and potential for bonus
compensation of the Employee, other than an insubstantial and inadvertent
failure not occurring in bad faith and which is remedied by the Company
within fifteen (15) days after receipt of notice thereof given by the
Employee; or
(B) a significant reduction in the responsibilities and/or duties of
the Employee the result of which is that the Employee (1) shall no longer
have control or authority over the management of the Company or the
Affiliates, or (2) shall have responsibilities which are not
commensurate with the historical responsibilities of the Senior Vice
President — Operations of the Company; or
(C) a change of location of the Employee’s office which is thirty
five (35) miles or more from the office where the Employee was located as
of the Effective Date; or
(D) a Change of Control (as herein defined); or
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(E) any willful failure or willful breach by the Company (not covered
by any of the clauses (A) through (D) above) of any material obligations of
this Agreement, if such breach is not cured within thirty (30) days after
written notice thereof by the Employee to the Company’s Board of Directors.
For the purposes of this Agreement, a “Change of Control” shall mean that
any of the following has occurred:
| (i) | any person or other entity (other than any of the Company’s subsidiaries or any employee benefit plan sponsored by the Company or any of its subsidiaries) including any person as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), becomes the beneficial owner, as defined in Rule 13d-3 under the Exchange Act, directly or indirectly, of more than fifty percent (50%) of the total combined voting power of all classes of capital stock of the Company normally entitled to vote for the election of directors of the Company (the “Voting Stock”), | ||
| (ii) | the stockholders of the Company approve the sale of all or substantially all of the property or assets of the Company and such sale occurs; | ||
| (iii) | the stockholders of the Company approve a consolidation or merger of the Company with another corporation (other than with any of the Company’s subsidiaries), the consummation of which would result in the shareholders of the Company immediately before the occurrence of the consolidation or merger owning, in the aggregate, less than 60% of the Voting Stock of the surviving entity, and such consolidation or merger occurs; | ||
| (iv) | a change in the Company’s Board of Directors occurs with the result that the members of the Board immediately prior to such change no longer constitute a majority of such Board of Directors; or | ||
| (v) | any other change of ownership or effective control (as defined in Section 280G(b)(2) of the Internal Revenue Code (the “Code”)). |
For the avoidance of doubt, no Change of Control shall be deemed to occur
if any of the events enumerated above occur as a result of (i) the 144A
equity offering and private placement of equity securities with Xxxxxxxx,
Xxxxxxxx & Xxxxxx, Co. as initial purchaser and placement agent (the “144A
offering”); (ii) any issuance of equity securities pursuant to the shelf
registration statement filed in connection with the 144A offering; (iii)
any changes associated with the listing of the Company’s stock on the
NASDAQ stock market; or (iv) an initial public offering or shelf
registration of the Company’s stock.
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For the further avoidance of doubt, the Employee’s decision not to terminate his
employment within 90 days after the occurrence of any event which constitutes “Good
Reason” shall not preclude or otherwise constitute a waiver of the Employee’s right to
terminate his employment within 90 days of any other event which constitutes “Good
Reason.”
(d) Voluntary Termination By The Employee Without Good Reason. The
Employee may, at any time upon three (3) months prior written notice, terminate his
employment under this Agreement without Good Reason.
(e) Termination on Death or Permanent Disability. The
Employee’s employment under this Agreement shall terminate upon the Employee’s death or
Disability. For purposes of this Agreement, “Disability” shall mean the inability of
the Employee to substantially perform the Employee’s duties and responsibilities to the
Company by law, by reason of a physical or mental disability or infirmity (i) for a total
of one hundred twenty (120) days in any consecutive twelve (12) month period or (ii) at
such earlier time as the Employee submits or the Company receives satisfactory medical
evidence that the Employee has a physical or mental disability or infirmity which will
likely prevent him from returning to the performance of the Employee’s work duties for
four (4) months or longer. In the event of any dispute regarding the determination of the
Employee’s Disability, such determination shall be made by a physician selected by the
Company, at the Company’s sole expense, in consultation with the Employee’s primary
treating physician; provided, however, that the Employee’s Disability shall
be conclusively presumed if such determination is made by an insurer providing
disability insurance coverage to the Employee or the Company in respect of the Employee.
6. Severance Benefits. Upon termination of the Employee’s employment under
this Agreement, the Employee shall be entitled to receive the following termination
benefits in lieu of all other considerations and payments under this Agreement and all
claims for damages and remedies based on a claim of wrongful discharge, after receipt of
which the rights and obligations of the parties hereunder shall become void and of no
further force and effect; provided, however, that the Employee shall remain obligated to
abide by the restrictive covenants set forth in Section 9 of this Agreement until such
time as they would otherwise expire.
(a) Termination for Cause or Without Good Reason. If the Employee’s
employment is terminated for Cause by the Company in accordance with Section 5(a)
or is terminated voluntarily by the Employee in accordance with Section 5(d),
then the following severance benefits shall be due:
(i) base salary shall be paid through such date of
termination;
(ii) any bonus that may otherwise have become due for the fiscal year prior
to the year in which the Employee’s employment is terminated; and
(iii) all benefits, including all life insurance policies maintained
pursuant to Section 4(e) above, may be terminated or canceled by the Company at
any time from and after the last day of employment, subject only to the
Employee’s
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“COBRA” rights to continue health insurance and his right to vested funds in the
Company sponsored retirement savings and pension plans.
(b) Termination by Death or Disability. If the Employee’s
employment is terminated by the Company upon the death or Disability of the
Employee, then the following severance benefits shall be due and payable at the
Company’s option either in one lump sum or in accordance with the Company’s
customary practices:
(i) the Employee (or his estate or representative) shall be entitled to his
base salary for 12 months following the date of termination; and
(ii) the Employee (or his estate or representative) shall be entitled to
receive all accrued and unpaid bonuses for the year immediately preceding the
termination of Employee’s employment, plus a bonus payment in an amount equal to
one (1) times the average annual bonus paid to Employee for the two (2) complete
years immediately preceding Employee’s Death or Disability.
In addition, Employee shall receive the following:
(i) all options and restricted stock shall immediately vest;
(ii) all group health, life and disability insurance benefits and health
club memberships shall continue for a period of 12 months from the date of
termination. In the case of termination by reason of the death of the Employee,
then such group health, life and disability insurance benefits shall continue as
aforesaid for the benefit of any dependents who survive him; and
(iii) all policies of insurance on the life of the Employee maintained by
the Company pursuant to Paragraph 4(e), above, shall (except in the case of
termination by reason of the Employee’s death) be assigned to the Employee,
without charge (except for any applicable income taxes which the Employee may be
liable for), effective on the last day of employment, and thereafter, the Company
shall have no further obligation to maintain those policies or to pay additional
premiums thereon.
(c) Wrongful Discharge or Termination for Good Reason. If the
Employee’s employment is terminated by the Company other than for Cause or by
reason of death or Disability, or if the Employee’s employment is terminated by
the Employee for Good Reason, then the following severance benefits shall be due
and payable in one lump sum:
(i) an amount equal to three (3) times the Employee’s base salary (i.e.,
thirty-six (36) months base salary); and
(ii) an amount equal to three (3) times the Employee’s average annual bonus
for the two (2) complete years immediately preceding the termination of the
Employee’s employment.
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In addition, Employee shall receive the following:
(i) all options and restricted stock shall vest immediately (to the extent
not previously vested) without regard to whether or not any of the conditions
specified therein have been achieved;
(ii) all group health, life and disability insurance benefits and health
club memberships shall continue for thirty-six (36) months; and
(iii) the Company shall convert all policies of insurance on the life of the
Employee that are required to be maintained by the Company pursuant to Paragraph
4(e), above, into fully paid, term policies; shall promptly pay in full the
premiums then due; and shall assign such policies to the Employee, without charge
(except for any income taxes the Employee may be liable for), effective on the
last day of employment.
(d) Shareholder Approval of Severance Benefits. The Company shall
use its best efforts to obtain shareholder approval for the portion of the
severance benefits payable under Section 6 of this Agreement which would otherwise
be subject to excise tax under section 4999 of the Code which complies with
section 280G(b)(5)(B) and the regulations thereunder.
(e) Limits on Severance Payments. Anything in this Agreement to
the contrary notwithstanding, the following restrictions shall apply:
(i) In the event that it shall be determined that any payment or distribution
from the Company, any affiliate, or trusts established by the Company or by any
affiliate to or for the benefit of the Employee (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or otherwise,
and with a “payment” including, without limitation, the vesting of an option or
other non-cash benefit or property) (a “Payment”) would be nondeductible by the
Company for Federal income tax purposes because of section 280G of the Code, or
any successor provision, then the aggregate present value of amounts payable or
distributable to or for the benefit of the Employee pursuant to this Agreement
(“Agreement Payments”) shall be reduced (but not below zero) to the Reduced
Amount. For purposes of this paragraph, the “Reduced Amount” shall be an amount
expressed in present value which maximizes the aggregate present value of
Agreement Payments without causing any Payment to be nondeductible because of said
section 280G of the Code. The determination to be made hereunder shall be made
within twenty (20) days after the date of termination by the accounting firm that
is then acting as auditor for the Company (the “Accounting Firm”), which shall
provide detailed calculations thereof to the Company and to the Employee,
provided, however, that the Employee shall elect which and how much of the
Agreement Payments shall be reduced consistent with such calculations. The
determination to be made by the Accounting Firm shall be binding upon the Company
and the Employee unless each of the following occurs: (i) within fifteen (15) days
of the date of such determination, either party gives to the other party a written
legal opinion from a nationally recognized law firm stating that there is a
substantial possibility that the
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Internal Revenue Service will reach a conclusion different from that reached by
the Accounting Firm; (ii) either party, within fifteen (15) days of the date of
such letter, seeks a private letter ruling from the Internal Revenue Service; and
(iii) the Internal Revenue Service issues a private letter ruling reaching a
conclusion different from that reached by the Accounting Firm. A private letter
ruling by the Internal Revenue Service issued under these circumstances shall be
binding upon the Company and the Employee. Present value, for purposes of the
calculations under this paragraph 7(d), shall be determined in accordance with
section 280G(d)(4) of the Code.
(ii) As a result of uncertainty in the application of section 280G of the
Code at the time of any initial determination by the Accounting Firm hereunder,
it is possible that Agreement Payments will have been paid or distributed by the
Company which should not be so paid or distributed (“Overpayment”) or that
additional Agreement Payments which were not paid or distributed by the Company
could have been so paid or distributed (“Underpayment”), in each case, consistent
with the calculation of the Reduced Amount hereunder. In the event that the
Accounting Firm determines that an Overpayment has been made, any such
Overpayment shall be treated for all purposes as a loan to the Employee which the
Employee shall repay to the Company promptly upon receiving notice of such
Overpayment together with interest at the applicable federal rate provided for in
section 7872(f)(2) of the Code; provided, however, that no amount shall be
payable by the Employee to the Company (or if paid by the Employee to the Company
shall be returned to the Employee) if and to the extent such payment would not
reduce the amount which is nondeductible under section 280(g) of the Code or
which is subject to taxation under section 4999 of the Code. In the event that
the Accounting Firm determines that an Underpayment has occurred, any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Employee together with interest at the applicable federal rate provided for in
section 7872(f)(2) of the Code.
(f) Calculation of Severance Payments. For the avoidance of doubt,
for purposes of calculating severance benefits pursuant to this Section 6, the
Employee’s average annual bonus for the two (2) complete years immediately
preceding the termination of the Employee’s employment shall not, under any
circumstances, include the special payment of $422,583 received by the Employee
in 2004.
7. Relationship Created. The relationship created by this Agreement is
that of employer and employee and nothing contained in this Agreement shall be construed
in any way as creating any partnership, joint venture or other relationship between the
parties. Nothing contained in this Agreement shall be construed as granting Employee any
right to bind or obligate the Company in any manner not herein granted, without the
express written consent of the Company.
8. Payment of Undisputed Amounts. If there is a dispute between the
parties with respect to any amount claimed to be due hereunder, any portion that is not
disputed shall be paid by the obligor to the payee. Any such partial payment shall not,
however, constitute a waiver by the recipient of such payment of any other rights.
9. Restrictive Covenants.
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(a) Non-Competition. Employee agrees that during his employment and for a
one (1) year period thereafter (other than if wrongfully terminated by the Company,
terminated with Good Reason by the Employee or if the Company fails to make any payment
or perform any obligation owned to Employee to Employee required to be made hereunder, in
which case this restrictive period shall lapse immediately) (the “Restrictive Period”),
he will not, directly or indirectly, engage, participate, or have any interest or be
involved in any capacity, whether as an owner, agent, stockholder (excluding ownership of
not more than 5% of the outstanding shares of a publicly held corporation if such
ownership does not involve, and neither Employee nor any of his respective affiliates
otherwise has, any managerial or operational responsibility in respect thereof), officer,
director, manager, partner, joint venturer, employee, consultant, advisor, agent or
otherwise, in any business enterprise which is, or shall at any time during the
Restrictive Period be, directly or indirectly engaged in the business of manufacturing
wire and cable in the United States and in any other countries or territories where the
Company sells its products.
(b) Non-Disclosure of Confidential Information.
(i) Employee acknowledges that it is the policy of the Company to
maintain as secret and confidential all valuable and unique information
heretofore or hereafter acquired, developed or used by the Company relating
to the business, operations, employees and customers of the Company, which
information includes technical knowledge, know-how or trade secrets and
information concerning the operations, sales, personnel, suppliers,
customers, costs, profits, markets, pricing policies, Confidential Materials
(as hereinafter defined), and the results of any investigations or
experiments of the Company (such information is hereinafter referred to as
“Confidential Information,” provided that Confidential Information shall not
include any of the foregoing items which are in the public domain or which
are available from third-party sources without any violation of this
Agreement). Employee recognizes that the services to be performed by
Employee are special and unique, and that by reason of his duties he will
acquire Confidential Information. Employee recognizes that all such
Confidential Information is the sole and exclusive property of the Company.
In consideration of the Company’s entering into this Agreement, Employee
agrees that:
(A) he shall never for so long as such information is valuable
and unique (but in no case for longer than five (5) years
following the termination of Employee’s employment by the
Company), directly or indirectly use, publish, disseminate or
otherwise disclose any Confidential Information obtained during his
employment by the Company without the prior written consent of the
Company’s Board of Directors, it being understood that this
subparagraph shall survive the term of this Agreement;
(B) during the term of his employment by the Company, he shall
exercise all due and diligent precautions to protect the integrity of
the Company’s customer lists, mailing lists and sources thereof,
statistical data and compilations, agreements, contracts, manuals or
other documents and
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any and all other materials embodying any Confidential Information
(the “Confidential Materials”) and, upon termination of his
employment hereunder, or such earlier time as the Company may so
request, he shall immediately return to the Company all such
Confidential Materials (and copies thereof) then in his possession
or control;
(C) Employee agrees that he will at all times comply with all
security regulations (1) in effect from time to time at the Company’s
premises and (2) in effect for materials belonging to the Company;
and
(D) Employee agrees that the provisions of this subsection (b)
are reasonably necessary to protect the proprietary rights of the
Company in the Confidential Information and its trade secrets, good
will and reputation.
(c) Severability. In the event a court of competent jurisdiction
determines that the provisions of the covenants in this Section 9 are excessively
broad as to duration, geographic scope or activity, it is expressly agreed that
the covenants contained in this Section 9 shall be construed so that the
provisions which the court does not deem excessively broad shall not be affected,
but shall remain in full force and effect, and any such overly broad provisions
shall be deemed, without further action or the part of any party, to be modified,
amended and or limited, but only to the extent necessary to render the same valid
and enforceable in such jurisdiction.
(d) Remedies. Employee acknowledges that any breach of the provisions
of this Section 9 can cause irreparable harm to the Company for which the Company
would have no adequate remedy at law. In the event of a breach or threatened
breach by Employee of any of such provisions, in addition to any and all other
rights and remedies it may have under this Agreement or otherwise, the Company may
immediately seek any judicial action deemed necessary, including, without
limitation, temporary and preliminary injunctive relief.
10. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in writing and
shall be deemed to have been given when delivered personally to the recipient, one day
after being sent to the recipient by reputable overnight courier service (charges
prepaid) or three days after being mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the recipients at the addresses indicated below:
Notices to Employee:
Xx. Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
with a copy (which shall not constitute notice) to:
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Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxx & Samotny, Ltd.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx, Xxxxx & Samotny, Ltd.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Notices to the Company:
Xxxxxxx Cable, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
with a copy (which shall not constitute notice) to:
Mayer, Brown, Xxxx & Maw LLP
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx
or such other addresses or to the attention of such other person as the recipient party
shall have specified by prior written notice to the sending party. Any notice under this
Agreement shall be deemed to have been given when so delivered or mailed.
11. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or any other
jurisdiction, but this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never been
contained herein.
12. Complete Agreement. This Agreement embodies the complete agreement
and understanding among the parties hereto and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written or oral,
which may have related to the subject matter hereof in any way.
13. No Strict Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual intent,
and no rule of strict construction shall be applied against any party.
14. Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together constitute one
and the same agreement.
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15. Successors and Assigns. This Agreement is intended to bind and inure
to the benefit of and be enforceable by Employee, the Company and their respective heirs,
affiliates (including, without limitation, the Affiliates) successors and assigns, except
that Employee may not assign his rights or delegate his obligations hereunder without the
prior written consent of the Company. In the event the Company is sold (whether
through a sale of assets, merger, consolidation or otherwise) or is otherwise
reorganized, the Company shall cause the acquiring or surviving person or entity to
assume the obligations of the Company under this Agreement as if though such acquiring or
surviving person or entity were an original party hereto. The parties recognize that
the damages which Employee might suffer as a result of the Company’s breach of this
Section 15 are immeasurable and could result in irreparable harm. Accordingly, in
addition to any and all other remedies available to Employee at law or equity, Employee
shall be entitled to enforce this Section 15 through specific performance, temporary and
permanent injunction, and such other equitable remedies as it may choose, without the
requirements of posting bond.
16. Choice of Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois, without giving effect to
any choice of law or conflict of law rules or provisions (whether of the State of
Illinois, or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois. Any and all actions brought under this
Agreement shall be brought in the state or federal court setting in the County of Xxxx,
in the State of Illinois, and neither party shall seek a change of venue in any such
action.
17. Fees and Expenses. In the event that a dispute arises under this
Agreement which is submitted to a court of competent jurisdiction for resolution, or any
other legal enforcement or declaratory action is brought hereunder (whether in the native
of arbitration, litigation or otherwise), the prevailing party in such action or
proceeding shall receive, in addition to any award it receives in the action or
proceeding, reimbursement for all reasonable costs and expenses incurred in such action
or proceeding (including appeals therefrom), which reimbursed costs and expenses shall
include, but not be limited to, attorneys’ fees and expenses.
18. Amendment and Waiver. The provisions of this Agreement may be amended
or waived only with the prior written consent of the Company and Employee, and no course
of conduct or failure or delay in enforcing the provisions of this Agreement shall affect
the validity, binding effect or enforceability of this Agreement.
[Signatures appear on the following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
| XXXXXXX CABLE, INC. |
||||
| /s/ Xxxxxx X. Xxxxxxxx | ||||
| Xxxxxx X. Xxxxxxxx | ||||
| Director | ||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| XXXXXXX X. XXXXXXXX | ||||
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