exv10w13







	 	 	 	 	 



EXHIBIT 10.13




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:





     1. Definitions.



     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 pursuant to this Section 6 shall be made prior to the date that both (i) Employee has
delivered an original, signed release to the Company and (ii) the revocability period (if any) has
elapsed; provided however, that any payments that would otherwise have been made prior to such date
but for the fact that Employee had not yet delivered an original, signed release (or the
revocability period had not yet elapsed) shall be made as soon as administratively practicable but
not later than the seventy-fourth (74th) day following Employee’s termination of employment. If
Employee does not deliver an original, signed release to the Employer within forty-five (45) days
after receipt of the same from the Company, (i) Employee’s rights shall be limited to those made
available to Employee as if Employee were terminated under Section 5 above, and (ii) the Employer
shall have no obligation to pay or provide to Employee any amount or benefits described in this
Section 6 or any other monies on account of the termination of Employee’s employment.



     7. Termination of Employment by Disability.



     (a) Compensation and Benefits. If Employee becomes Disabled prior to the expiration of
the Period, the Company shall be entitled to terminate Employee’s employment at the later of (6)
six months from the date Employee becomes Disabled but not beyond the end of the Period or the date
the Company could terminate Employee in accordance with the Company’s normal policies in such
matters as applied in all other salaried employees. Employee will receive no compensation or
benefits following his termination, but Employee shall be entitled to receive benefits under the
Company’s plan(s) or program(s) in accordance with the terms of such plan(s) or program(s).



 









 





     (b) Date of Termination. The date of termination of Employee’s employment under this
Section 7 shall be the date determined pursuant to Section 7(a) above.



     8. Termination of Employment by Death. Employee’s employment will end in the event of
his death. Employee will receive no compensation or benefits following his death, but if Employee
dies prior to the expiration of the Period, the Employee’s estate or his beneficiary as appropriate
shall be entitled to receive benefits under the Company’s plan(s) or program(s) in accordance with
the terms of such plan(s) or program(s).



     9. Noncompetition and Nonsolicitation. During Employee’s employment with the Company
and for any period following employment during which he is entitled to receive post-employment
compensation in any form at the rate of his ending Base Salary, Employee shall refrain from
directly or indirectly, on his own behalf or on behalf of any other person or entity, competing
with the Company or any of its subsidiaries, anywhere in North America, including but not limited
to directly or indirectly engaging or investing in, owning, managing, operating, financing,
controlling, or participating in the ownership, management, operation, financing, or control of,
being employed by, associated with, or in any manner connected with, or rendering services or
advice to, in any capacity whatsoever (whether individually or as a shareholder (except as a
shareholder owning less than 1 % or less of the outstanding capital stock of a publicly traded
corporation), partner, member, director, officer, employee, or consultant), for any entity or
person that engages in or is in the process of or anticipates engaging in any business which in any
manner competes with the Company or any of its subsidiaries. In the event that Employee violates
the terms of this Section 9, the term of this covenant not to compete shall be extended for a
period of time equal to the period of time that Employee was violating the terms of this Section 9.


During Employee’s employment with the Company, and for a period of twelve (12) months following the
end of his employment for any reason, whether voluntary or involuntary, and with or without the
existence of post-employment compensation, Employee shall not, directly or indirectly, (i) induce
or attempt to induce any employee of the Company to leave the employ of the Company, (ii) in any
way interfere with the relationship between the Company and any of its employees, (iii) employ, or
otherwise engage as an employee, independent contractor, or otherwise, any employee of the Company,
or (iv) induce or attempt to induce any supplier or licensee of the Company to cease doing business
with the Company, or in any way interfere with the relationship between any supplier or licensee of
the Company. During Employee’s employment with the Company and for all time thereafter, Employee
shall not disparage, or induce others to disparage, the Company, its owners, employees, practices,
products or services.
For purposes of Section 9, “employee” shall mean any then-current employee or individual who was
employed by the Company at any time during the six (6) month period immediately preceding the end
of Employee’s employment.



In the event of a breach by Employee of any covenant set forth in this Section 9, the term of such
covenant will be extended by the period of the duration of such breach. Employee will not, at any
time during or after employment, disparage the Company or any of its owners, directors, officers,
employees, agents, products or services. Employee will within ten days after accepting


 









 






any employment, advise the Company of the identity of any employer of Employee. The Company may
serve notice upon each such employer that Employee is bound by this Agreement and furnish each such
employer with a copy of this Agreement or relevant portions thereof.




     10. Nondisclosure of Confidential Information.



     (a) Definition. For purposes of this Agreement “Confidential Information” means, but
is not limited to, any information or compilation of information, not generally known, which is
proprietary to the Company and relates to the Company’s existing or reasonably foreseeable
business, including, but not limited to, trade secrets and information relating to the Company’s
services, marketing plans or proposals and customer information. All information which the Company
identifies as being “confidential” or “trade secret” shall be presumed to be Confidential
Information. Confidential Information shall also include any confidential information of a parent,
subsidiary or sister corporation of the Company and any information disclosed by a third party
under contract with the Company which contract requires such disclosed information be kept
confidential. Confidential Information shall not include information that is in or enters the
public domain other than through a breach of confidentiality owed to the Company.



     (b) Nondisclosure. During the Period and at all times thereafter, Employee shall hold
in strictest of confidence and will never disclose, furnish, transfer, communicate, make assessable
to any person or use in any way Confidential Information for Employee’s own or another’s benefit or
permit the same to be used in competition with the Company, nor will Employee accept any employment
which would, by the nature of the position, inherently involve the use or disclosure by Employee of
Confidential Information.



     11. Remedies and Injunctive Relief. The parties acknowledge that the Company and/or
its subsidiaries will suffer irreparable harm if Employee breaches Sections 9 or 10 of this
Agreement. Accordingly, the Company shall be entitled, in addition to any other rights and remedies
that it may have, at law or at equity, to an injunction, without the parting of a bond or other
security, enjoining or restraining Employee from any violation of Sections 9 or 10 of this
Agreement. Employee hereby consents to the Company’s right to the issuance of such injunction.



     12. Section 409A. If a payment under this Agreement does not qualify as a short-term
deferral under Code Section 409A and Treas. Reg. §1.409A-1(b)(4), and the Employee is a Specified
Employee as of the date of termination, distributions to the Employee may not be made before the
date that is six months after the date of termination or, if earlier, the date of the Employee’s
death (the “Six-Month Delay Rule”). Payments to which the Employee otherwise would be entitled
during the first six months following the date of term (the “Six-Month Delay”) will be accumulated
and paid on the first day of the seventh month following the date of termination. Notwithstanding
the Six-Month Delay Rule set forth in this Section 12:



     (a) To the maximum extent permitted under Code Section 409A and Treas. Reg.
§1.409A-1(b)(9)(iii), during the first month of the Six-Month Delay, the Company will pay the
Employee an amount equal to the lesser of (i) the total lump sum severance provided under



 









 







Section 6(c)(i) and (ii) above, or (ii) two times the lesser of (A) the maximum amount that
may be taken into account under a qualified plan pursuant to Code Section 401(a)(17) for the year
in which the date of termination occurs, and (B) the sum of the Employee’s annualized compensation
based upon the annual rate of pay for services provided to the Company for the taxable year of the
Employee preceding the taxable year of the Employee in which his date of termination occurs
(adjusted for any increase during that year that was expected to continue indefinitely if the
Employee had not had a termination of employment); provided that amounts paid under this sentence
will count toward, and will not be in addition to, the total payment amount required to be made to
the Employee by the Company under Section 6(c) above.



     (b) To the maximum extent permitted under Code Section 409A and Treas. Reg.
§1.409A-1(b)(9)(v)(D), within ten (10) days of the date of termination, the Company will pay the
Employee an amount equal to the applicable dollar amount under Code Section 402(g)(1)(B) for the
year of the Employee’s date of termination; provided that the amount paid under this sentence will
count toward, and will not be in addition to, the total payment amount required to be made to the
Employee by the Company under Section 6(c) above.



     (c) Each payment under this Agreements is intended to be treated as one of a series of
separate payment for purposes of Code Section 409A and Treas. Reg. §1.409A-2(b)(2)(iii).



     (d) For purposes of this Agreement, “Specified Employee” has the meaning given that term in
Code Section 409A and Treas. Reg. 1.409-1(c)(i). The Company’s “specified employee identification
date” and “specified employee effective date” (as described in Treas. Reg. 1.409-1(c)(i)(3)) will
be the dates designated as such by the Company in a written resolution for all plans and agreements
subject to Code Section 409A or, in the absence of such resolutions, then the “specified employee
identification date” and the “specified employee effective date” for this Agreement shall be
December 31 and [January 1], respectively, of each succeeding year.



     13. Binding Agreement/Assignment. This Agreement shall be assignable by Employer and
the terms of this Agreement shall bind and inure to the benefit of Employer and its successors and
assigns.



     14. Severability. If the final determination of a court of competent jurisdiction
declares, after the expiration of the time within which judicial review (if permitted) of such
determination may be perfected, that any term of provision hereof is invalid or unenforceable, (a)
the remaining terms and provisions hereof shall be unimpaired and (b) the invalid or unenforceable
term or provision shall be deemed replaced by a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable term or provision.



     15. Survival of Provisions. The parties agree that Sections 9 and 10, and all other
provisions necessary for enforcement of such provisions shall survive termination of this Agreement
and termination of Employee’s employment for any reason.



     16. Others’ Confidential Information. If Employee possesses any information that he
knows or should know is considered by any third party, such as a former employer of his, to be



 









 







confidential, trade secret, or otherwise proprietary, Employee shall not disclose such information
to the Company or use such information to benefit the Company in any way.



     17. Understandings. Employee acknowledges and agrees that (a) the Company informed
him, as part of the offer of employment and prior to his accepting employment with the Company,
that a confidentiality, noncompetition, and nonsolicitation agreement would be required as part of
the terms and conditions of employment; (b) he executed this Agreement in anticipation of but prior
to commencing employment with the Company; (c) he has carefully considered the restrictions
contained in this Agreement and determined that they are reasonable as to duration, geographic area
and scope; and (d) the restrictions in this Agreement will not unduly restrict Employee in securing
other employment in the event of termination from the Company.



     18. Full Agreement; Amendment; Waiver. This Agreement contains the full agreement
between the parties as to its subject matter and may not be modified, amended or waived in any
manner except by an instrument in writing signed by both parties hereto. The waiver by either party
of compliance with any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such
party of a provision of this Agreement.



     19. Section 409A Compliance. Notwithstanding any provision of this Agreement to the
contrary, this Plan is intended to comply with Code Section 409A and the interpretive guidance
thereunder. The Plan shall be construed and interpreted in accordance with such intent.



     20. Governing Law. All matters affecting this Agreement, including the validity
thereof, are to be governed and construed in accordance with the laws of the state of Illinois.



     21. Notices. Any notice hereunder by either party to the other shall be given in
writing by personal delivery or certified mail, return receipt requested. If addressed to Employee,
the notice shall be delivered or mailed to Employee at the address specified under Employee’s
signature hereto or such other address which Employee has advised the Company to send notice to, or
if addressed to the Company, the notice shall be delivered or mailed to the Company at its
executive offices. A notice shall be deemed given, if by personal delivery, on the date of such
delivery or, if by certified mail, on the date shown on the applicable return receipt.



[Signature Page to Follow]




 









 







IN WITNESS WHEREOF, the Company has caused the Agreement to be signed by its officer pursuant to
the authority of its Board, and Employee has executed this Agreement, as of the day and year first
written above.




	 	 	 	 	 	 	 
	COLEMAN CABLE, INC.	 	MICHAEL FRIGO  
	 
	 	 	 	 	 	 
	By

	 	/s/ G. Gary Yetman
 

Its President/Chief Executive Officer
	 	/s/ Michael Frigo

 

Michael Frigo	 	 
	 
	 	 	 	 	 	 
	Date: December 30, 2008
	 	Date: December 30, 2008