AMENDED AND RESTATED
This agreement (the "Agreement") is made and entered into as of
September 25, 1996 by and between International Wire Group, Inc. ("Employer")
and Joseph M. Fiamingo ("Employee") and fully replaces that certain Employment
Agreement (the "Prior Agreement") dated as of October 9, 1995 between Wirekraft
Industries, Inc. and Employee.
W I T N E S S E T H :
WHEREAS, Employer is a direct wholly-owned subsidiary of International
Wire Holding Company ("International");
WHEREAS, Employee has previously entered into the Prior Agreement,
which Prior Agreement is to be fully restated and replaced by this Agreement.
WHEREAS, Employer desires to engage the services of Employee upon the
terms set forth herein and to replace the Prior Agreement; and
WHEREAS, Employee desires to be employed by Employer, to appropriately
memorialize the terms and conditions of such employment and to replace the
NOW, THEREFORE, Employee and Employer, in consideration of the
agreements, covenants and conditions herein, hereby agree as follows:
1. BASIC EMPLOYMENT PROVISIONS.
(a) Employment and Term. Employer hereby agrees to employ Employee
(hereinafter referred to as the "Employment") as President and Chief Operating
Officer of Employer (the "Position") and Employee agrees to be employed by
Employer in such Position for a period of thirty-six (36) months ending on the
24th day of September, 1999 (the "Termination Date"), unless terminated
earlier as provided herein (the "Employment Period").
(b) Duties. Employee in the Position shall be subject to the direction
and supervision of the Chief Executive Officer of Employer (the "CEO") or his
designee and shall have those duties and responsibilities which are assigned to
him during the Employment Period by the CEO consistent with the Position,
provided that the CEO shall not assign any greater duties or responsibilities
to the Employee than are necessary for the Employee's faithful and adequate
performance of the duties and responsibilities assigned. The parties expressly
acknowledge that the Employee shall devote all of Employee's business time and
attention to the transaction of the Employer's businesses as is reasonably
necessary to discharge Employee's responsibilities hereunder. Employee agrees
to perform faithfully the duties assigned to the best of Employee's ability.
(a) Salary. During the employment period, Employer shall pay to
Employee a salary as basic compensation for the services to be rendered by
Employee hereunder. The initial amount of such basic compensation shall be Two
Hundred Sixty Thousand Dollars ($260,000) per year. Such salary shall be
reviewed from time to time by the CEO of the Employer and may be increased in
the CEO's sole discretion. Such salary shall accrue and be payable in
accordance with the payroll practices of Employer in effect from time to time.
All such payments shall be subject to deductions and withholdings authorized or
required by applicable law.
(b) Bonus. During the Employment Period, Employee shall be eligible to
receive an annual bonus (payable by the Employer) in an amount to be determined
by the CEO of Employer, in the CEO's sole discretion, of up to sixty-five
percent (65%) of Employee's annual basic compensation as set forth above in
accordance with the Executive Incentive Compensation Plan.
(c) Benefits. During the Employment Period, Employee shall be entitled
to such other benefits as are determined by the CEO, including without
limitation, group life, hospitalization and other insurance, paid vacations,
executive medical supplement, annual executive physical, reimbursement for tax
preparation costs and executive lunches.
(d) Auto Allowance. Employer shall pay Employee an allowance to own
and maintain an automobile in an amount sufficient so that, after the effect of
federal and state income taxes, Employee shall net One Thousand Dollars
($1,000) per month.
(e) Country Club & Dining Club Membership. Employer shall reimburse
Employee for the initiation fee and monthly dues expense for Employee to belong
to a country club in the St. Louis, Missouri area reasonably acceptable to
Employer and for the initiation fee and monthly dues expense for the Saint
Louis Club, but not for any charges made by Employee at either club, unless
such qualify as reimbursable business entertainment expenses.
(f) Stock Options. The CEO will request the Board of Directors of
International Wire Holding Company to grant Employee options, in addition to
the four hundred thousand (400,000) options previously granted, under the
International Wire Holding Company 1995 Stock Option Plan.
(a) Death or Disability. This Agreement shall terminate automatically
upon the death or total disability of Employee. For the purpose of this
Agreement, "total disability" shall be deemed to have occurred if Employee
shall have been unable to perform the assigned duties due to mental or physical
incapacity for a period of three (3) consecutive months or for any sixty (60)
working days out of a six (6) month consecutive period.
(b) Cause. Employer may terminate the employment of Employee under
this Agreement for Cause. For the purpose of this Agreement, "Cause" shall be
deemed to be fraud, dishonesty, competition with Employer, unauthorized use of
any of Employer's trade secrets or confidential
information, or failure to properly perform the duties assigned to Employee, in
the reasonable judgment of Employer.
(c) Without Cause. Employer may terminate the employment of Employee
under this Agreement without Cause, subject to the continuing rights of
Employee pursuant to Section 4(c) below.
4. COMPENSATION UPON TERMINATION.
(a) Death or Disability. If the Employment Period is terminated
pursuant to the provisions of Section 3(a) above, this Agreement shall
terminate and no further compensation shall be payable to Employee, except that
Employee or Employee's estate, heirs or beneficiaries, as applicable, shall be
entitled, in addition to any other benefits specifically provided to them or
Employee under any benefit plan, to receive Employee's then current salary for
a period of twelve (12) months from the date the Employment Period terminates.
(b) Termination for Cause or Voluntary Termination by Employee. If the
employment of Employee under this Agreement is terminated for Cause pursuant to
the provisions of Section 3(b) above or if Employee voluntarily terminates
Employee's employment, no further compensation shall be paid to Employee after
the date of termination.
(c) Termination Without Cause. If the Employment of Employee under
this Agreement is terminated pursuant to Section 3(c) above, Employee shall be
entitled to continue to receive from Employer the then current basic
compensation hereunder [which shall not be less than the amount specified in
Section 2(a) above] until the Termination Date, such amount to be paid in
accordance with the payroll practices of Employer, and shall further be
entitled to continue to receive the benefits to which Employee would otherwise
be entitled pursuant to Section 2(c) above.
5. EXPENSE REIMBURSEMENT. Upon submission of properly documented
expense account reports, Employer shall reimburse Employee for all reasonable
travel and entertainment expenses incurred by Employee in the course of his
employment with Employer.
6. ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto, except that this Agreement and all of the provisions hereof
may be assigned by Employer to any successor to all or substantially all of its
assets (by merger or otherwise) and may otherwise be assigned upon the prior
written consent of Employee.
7. CONFIDENTIAL INFORMATION.
(a) Non-Disclosure. During the Employment Period or at any time
thereafter, irrespective of the time, manner or cause of the termination of
this Agreement, Employee will not directly or indirectly reveal, divulge,
disclose or communicate to any person or entity, other than authorized
officers, directors and employees of the Employer, in any manner whatsoever,
any Confidential Information (as hereinafter defined) of Employer without the
prior written consent of the CEO.
(b) Definition. As used herein, "Confidential Information" means
information disclosed to or known by Employee as a direct or indirect
consequence of or through the Employment about Employer or its respective
businesses, products and practices, which information is not generally known in
the business in which Employer is or may be engaged. However, Confidential
Information shall not include under any circumstances any information with
respect to the foregoing matters which is (i) available to the public from a
source other than Employee, (ii) released in writing by Employer to the public
or to persons who are not under a similar obligation of confidentiality to
Employer and who are not parties to this Agreement, (iii) obtained by Employee
from a third party not under a similar obligation of confidentiality to
Employer, (iv) required to be disclosed by any court process or any government
or agency or department of any government, or (v) the subject of a written
waiver executed by Employer for the benefit of Employee.
(c) Return of Property. Upon termination of the Employment, Employee
will surrender to Employer all Confidential Information, including without
limitation, all lists, charts, schedules, reports, financial statements, books
and records of the Employer, and all copies thereof, and all other property
belonging to the Employer shall be accorded reasonable access to such
Confidential Information subsequent to the Employment Period for any proper
purpose as determined in the reasonable judgment of Employer.
8. AGREEMENT NOT TO COMPETE.
(a) Employee agrees:
(i) To give the CEO thirty (30) days' written advance notice of
voluntary termination of employment with Employer. Such notice shall
include Employee's future employment or self-employment intentions,
identification of the prospective employer and the general nature of
the prospective employment or self-employment, if known. Employer
shall continue to pay the then-current salary to Employee until the
end of such notice period.
(ii) To participate in an exit interview conducted by a member
of the personnel department of Employer and/or by a representative of
Employer, at the time of or prior to the termination of Employment
(iii) That for two (2) years following the termination of the
Employment, Employee shall promptly notify Employer of any change in
the identification of Employee's employer or the nature of such
employment or of self-employment.
(iv) Subject to the conditions hereinafter stated, Employee
will not, within two (2) years after leaving the employ of Employer,
engage or enter into employment by, or into self-employment or gainful
occupation as, a Competing Business or act directly or indirectly as
an advisor, consultant, sales agent or broker for a Competing
Business. As used herein, "Competing Business" means a business which
is engaged in the manufacture, sale or other
disposition of a product or service or has under development a product
or service which is in direct competition with a product or service,
whether existing or under development, of the Employer. Employee
acknowledges that Employer does not have an adequate remedy at law in
the event Employee violates this provision and, therefor, Employee
agrees that, in such an event, Employer shall be entitled to seek
equitable relief, including but not limited to, injunctive relieve and
to withhold all payments due to Employee hereunder pending a judicial
determination of whether Employee has violated this Agreement.
(v) The terms of 8(a)(i) - 8(a)(iv) shall apply whether the
termination is voluntary or involuntary for whatever reason.
(b) Employer agrees:
(i) That within fifteen (15) business days after receiving
identification of the prospective employer, the nature of the
employment or self-employment pursuant to Paragraph 8(a)(i) above, or
any change therein pursuant to Paragraph 8(a)(iii) above, Employer
will advise Employee as to whether such employment constitutes a
Competing Business as defined in Paragraph 8(a)(iv) above.
(ii) In the event Employer advises Employee that such
employment constitutes a Competing Business, to forward to Employee at
the end of each of the twenty-four (24) successive calendar months
following the month in which Employment by Employer terminates, a
check in the amount equal to one-half (1/2) of the monthly salary of
Employee (exclusive of extra compensation of any kind) as of the
Termination Date. If notice is received pursuant to Paragraph 8(b) and
the Employer advises Employee that such employment constitutes a
Competing Business, the aforementioned monthly checks shall be
forwarded for the remaining number of the aforesaid twenty-four (24)
successive calendar months. Provided, however, that all payments due
under this Paragraph 8(b)(ii) shall not be required during any periods
that Employee is receiving payments under either Paragraphs 4(a) or
9. WAIVER OF AGREEMENT NOT TO COMPETE. The Employer, based on the
facts revealed to it by the Employee regarding the new employment and in its
discretion upon written notification to Employee, may at any time waive or
elect not to enforce the provisions of Paragraph 8(a)(iv), in which event the
obligations of Paragraph 8(b)(ii) above shall thereafter not apply.
10. AGREEMENT NOT TO SOLICIT EMPLOYEES. Employee agrees that, for a
period of two (2) years following the termination of the Employment Period,
Employee shall not, on behalf of any business, engage in a business competitive
with Employer, solicit or induce, or in any manner attempt to solicit or
induce, either directly or indirectly, any person employed by, or any agent of,
Employer to terminate such employment or agency, as the case may be, with
Employer. In the event of violation hereof, Employer may terminate any payments
due to Employee hereunder.
11. NO VIOLATION. Employee hereby represents and warrants to Employer
that the execution, delivery and performance of this Agreement or the passage
of time, or both, will not
conflict with, result in a default, right to accelerate or loss of rights under
any provision of any agreement or understanding to which the Employee or, to
the best knowledge of Employee, any of Employee's affiliates are a party or by
which Employee, or to the best knowledge of Employee, Employee's affiliates may
be bound or affected.
12. CAPTIONS. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit or
amplify the provisions hereof.
13. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed delivered, whether or not actually
received, two days after being deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed to
the party to whom notice is being given at the specified address or at such
other address as such party may designate by notice:
Employer: International Wire Group, Inc.
101 South Hanley Road
St. Louis, Missouri 63105
Attn: Chief Executive Officer
Employee: Joseph M. Fiamingo
17724 Greystone Terrace
Chesterfield, Missouri 63005
14. INVALID PROVISIONS. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance of this Agreement. In
lieu of each such illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
15. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof, including the Prior Agreement, which is fully replaced
hereby. This Agreement may be amended, in whole or in part only, by an
instrument in writing setting forth the particulars of such amendment and duly
executed by an officer of Employer expressly authorized by the CEO to do so and
16. WAIVER. No delay or omission by any party hereto to exercise any
right or power hereunder shall impair such right or power to be construed as a
waiver thereof. A waiver by any of the parties hereto of any of the covenants
to be performed by any other party or any breach thereof shall not be construed
to be a waiver of any succeeding breach thereof or of any other covenant herein
contained. Except as otherwise expressly set forth herein, all remedies
provided for in this
Agreement shall be cumulative and in addition to and not in lieu of any other
remedies available to any party at law, in equity or otherwise.
17. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same agreement.
18. GOVERNING LAW. This Agreement shall be construed and enforced
according to the laws of the state of Missouri.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
INTERNATIONAL WIRE GROUP, INC.
By /s/ JAMES N. MILLS /s/ Joseph M. Fiamingo
James N. Mills, Chairman Joseph M. Fiamingo