Amended and Restated
Employment Agreement
THIS AMENDED
AND RESTATED EMPLOYMENT AGREEMENT is between Coleman Cable, Inc.
(the “Company”) and Michael Frigo, a resident of Ohio
(“Employee”), and is contingent upon and effective only
as of the consummation of the transactions contemplated by the
Purchase Agreement.
WHEREAS,
Employee has previously entered into an employment agreement with
the Company dated March 9, 2007 (the “Prior
Agreement”);
WHEREAS, the
Company desires to continue Employee’s employment with the
Company under the terms set forth herein which shall supersede the
Prior Agreement which shall have no further force or effect after
this Agreement becomes effective;
NOW, THEREFORE,
in consideration of the promises and the mutual covenants herein
contained, the parties hereto agree as follows:
The terms used in
the Agreement shall be defined as follows:
(a) “Agreement”
shall mean this Agreement as amended from time to time.
(b) “Base
Salary” shall mean the annual base salary payable to Employee
pursuant to Section 4(a) hereof.
(c) “Cause”
shall mean termination of the Employee’s employment with the
Company because of, but not to be limited to, Employee’s
(1) gross misconduct; (2) material nonperformance; (3)
material breach of this Agreement; (4) conviction or entry of
a plea of guilty or nolo contendere to any felony or
misdemeanor or the entry of any final civil judgment in connection
with any allegation of fraud, misrepresentation, misappropriation
or any other intentional tort or statute violation;
(5) insubordination; (6) violation of the Company’s
sexual harassment/anti-discrimination policies; or (7) a court
order prohibiting Employee from working for the Company for a
period that extends beyond six months. Material nonperformance
shall be deemed to occur only if such material nonperformance has
not been corrected by the Employee within two weeks of written
notice from the Company of the occurrence of such material
nonperformance, which notice shall specifically set forth the
nature of the material nonperformance and be delivered no more than
thirty (30) days following the event giving rise to the
material nonperformance notice.
(d) “Company”
shall mean Coleman Cable, Inc., its successors or
assigns.
(e) “Disabled”
shall mean unable to perform the essential functions of the
position, with or without reasonable accommodation, as a result of
a physical or mental impairment, as evaluated by sufficient
documentation including doctors’ statements.
(f) “EBITDA”
shall mean the earnings before interest, taxes, depreciation and
amortization.
(g) “Effective
Date” shall mean the Closing Date (as defined in the Purchase
Agreement).
(h) “Employee”
shall mean Michael Frigo, a resident of Ohio.
(i) “Employee
Benefit Plans” shall mean any plans within the meaning of
Section 4(d) of this Agreement.
(j) “Period”
shall mean the one-year period commencing on the Effective Date and
ending on the one-year anniversary thereof; provided, however, that
the Period shall, on a daily basis, beginning with the Effective
Date, be automatically extended by one day, such that at any time,
after the Effective Date, the remaining duration of the Period
shall be one year. Such day-to-day extensions of the Period shall
cease upon either (i) either party delivering written notice
of such cessation to the other party; provided that such cessation
of the automatic extensions shall not be effective earlier than the
date of delivery of such notice or (ii) Employee’s Date
of Termination.
(k)
“Substantial Breach” shall mean without the
Employee’s prior consent: (1) a material reduction in
the Employee’s responsibilities hereunder; provided, that it
shall not be deemed to be a Substantial Breach if Employee’s
duties are revised so long as he remains in a position of at least
a senior manager within the Company; (2) a material reduction
by the Company in the Base Salary of Employee except to the extent
permitted under Section 4(a) hereof; and (3) any willful
failure or willful breach by the Company of any material
obligations of this Agreement. The Employee must give written
notice to the Company of a Substantial Breach within 90 days
of the occurrence of any event which constitutes Substantial
Breach. The Company shall have thirty (30) days after written
notice thereof by the Employee to the Company’s Board of
Directors to remedy the occurrences of clause (1) through
(4) above.
(l) “Purchase
Agreement” shall mean the Equity Purchase Agreement by and
between the stockholders of Spell Capital Corporation and the
equity holders (other than Spell Capital Corporation) of
Copperfield, LLC.
2.
Employment and Duties .
(a)
General . The Company hereby employs Employee, and Employee
agrees upon the terms and conditions herein set forth and shall
perform duties substantially the same as normally performed by
persons in like positions in similar companies, or as may be
assigned from time to time.
(b) No
Other Employment . Throughout the time that Employee is
employed by the Company, Employee shall, except as may from time to
time be otherwise agreed in writing by the Company and unless
prevented by ill health, devote his full-time working hours to his
duties hereunder and Employee shall not, directly or indirectly,
render services to any other person or organization for which he
receives compensation (excluding volunteer services or outside
board
activities with
modest time commitments) without the written consent of the Company
or otherwise engage in activities with would interfere
significantly with the performance of his duties
hereunder.
3. Term
of Employment . Subject to earlier termination of employment
pursuant to Sections 5, 6, 7 or 8 of this Agreement, the
Company shall retain Employee during the Period; and Employee shall
serve in the employ of the Company for the Period as defined in
Section 1(j).
4.
Compensation and Other Benefits . Subject to the provisions
of this Agreement, the Company shall pay and provide the following
compensation and other benefits to Employee during the term of his
employment as compensation for services rendered
hereunder;
(a) Base
Salary . The Company shall pay to Employee a Base Salary at the
rate of $400,000 per annum, payable bimonthly. The Company shall be
entitled to deduct or withhold all taxes and charges that the
Company may be required to deduct or withhold therefrom.
(b)
Incentive Compensation . At all times during the Period,
Employee shall be eligible to receive Incentive Compensation of up
to 60% of Base Salary based on the Company’s achievement of
earnings and other corporate performance goals as established by
the CEO in his sole discretion at or before the beginning of each
such fiscal year. Employee shall not earn or receive any Incentive
Compensation for a fiscal year in which he was not actively
employed the entire fiscal year (except that Employee’s hire
date in 2007 shall not effect his eligibility for fiscal year
2007).
(c)
Automobile Allowance . Company shall pay Employee a gross
amount of $700 per month as an automobile allowance. The Company
shall be entitled to deduct or withhold from the gross amount of
such automobile allowance all taxes and charges which the Company
may be required to deduct or withhold therefrom. Employee shall
produce such reasonable documentation as requested by the Company
to evidence that Employee has spent such amount on a car purchase
or lease payment, gasoline, insurance or car
maintenance.
(d) Other
Employee Benefit Plans . Subject to the plans’
eligibility requirements, Employee shall be eligible to participate
in all pension and welfare plans and programs of the Company for
executive employees, existing from time to time, including, without
limitation, the following:
i. All
qualified benefit plans and programs (e.g., defined contribution,
supplemental retirement and Section 401(k) plans, life insurance
plans and programs);
ii. All
hospitalization and medical plans and programs; and
iii. All
retirement plans and programs.
5.
Termination of Employment for Cause .
(a)
Compensation and Benefits . If, prior to the expiration of
the Period, (i)
Employee’s employment is terminated by the
Company for Cause, or (ii) Employee resigns from his
employment hereunder other than under circumstances covered by
Section 6 below, Employee shall not be eligible to receive any
compensation or benefits or to participate in any plans or programs
under Section 4 hereof with respect to the Period after the
date of such termination except for the right to receive benefits
under any plan or program, to the extent vested, in accordance with
the terms of such plan or program and except for benefits provided
in accordance with customary practices of the Company at
Employee’s expense (e.g., hospitalization and medical
insurance under COBRA).
(b) Date
of Termination . The date of termination of Employee’s
employment by the Company under this Section 5 shall be two
(2) weeks after receipt by Employee of written notice of
termination for Cause or after receipt by the Company of written
notice of Employee’s resignation.
6.
Termination of Employment Without Cause or Resignation After
Substantial Breach . If, prior to the expiration of the Period,
Employee’s employment is terminated by the Company without
Cause for any reason, or if, prior to the expiration of the Period
Employee resigns from his employment hereunder following a
Substantial Breach, the Company shall continue to pay Employee his
Base Salary through the Period, payable in accordance with the
Company’s standard payroll policies. Employee’s receipt
of such Base Salary will be conditioned on his execution, return,
and non-rescission of a full and final release of claims in favor
of the Company, the form of which will be provided by the Company
within ten (10) days of Employee’s termination of
employment. No payments
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