EMPLOYMENT AGREEMENT
Exhibit 10.8
This EMPLOYMENT AGREEMENT (the “Agreement”) is executed this 8th day of
June, 2007, by and between (i) GLOBE SPECIALTY METALS INC., a Delaware corporation (the
“Company”), with its principal place of business currently at 0 Xxxx Xxxxx, Xxxxx 0000, Xxx
Xxxx, XX 00000 and (ii) XXXXXX XXXXXXXXX (the “Executive”), currently residing at 000 0xx
Xxx, # 00X, Xxx Xxxx, XX 00000. Certain other capitalized terms used herein are defined in
Section 9 below.
In consideration of the mutual covenants and promises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the Executive,
and the Executive hereby accepts employment with the Company, upon the terms set forth in
this
Agreement, for a term of three years that commences on June 1, 2007 (the “Effective
Date”), and that ends, unless sooner terminated in accordance with Section 4, on May 31, 2010. The period during which the Executive is employed pursuant to this Agreement shall be
referred to herein as the “Employment Period.”
2. Title; Capacity.
(a) During the Employment Period, the Executive shall serve as the
Chief Financial Officer of the Company and shall have all authorities, duties and
responsibilities
customarily exercised by an individual serving in that position at an entity of the size and
nature
of the Company, as from time to time reasonably modified by the Board of Directors of the
Company (the “Board”) on notice to the Executive. During the Employment Period, the
Executive shall report directly to the Board and the Chief Executive Officer.
(b) The Executive hereby accepts such employment, agrees to
undertake the duties and responsibilities of Chief Financial Officer of the Company in
accordance herewith, and to perform such other executive duties and responsibilities,
consistent
herewith, as the Board or Chief Executive Officer shall from time to time reasonably assign
to
him. The Executive agrees to devote substantially all of his business time, attention and
energies
to the business and interests of the Company during the Employment Period; provided,
however,
that nothing in this Agreement shall preclude the Executive from: (i) engaging in charitable
and
professional activities and community affairs provided that such activities and community
affairs
do not impact negatively upon the image of the Company, and (ii) managing his personal
investments and affairs. The Executive’s principal places of employment shall be at the
Company’s headquarters, which are currently located at the address for the Company set forth
above. Unless otherwise traveling on Company business, the Executive shall generally work at
the Company’s headquarters in New York, New York.
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3. Compensation and Benefits.
3.1 Salary. In accordance with the normal payroll practices of the Company,
the Company shall pay the Executive an annual base salary (the “Base Salary”) of Two Hundred
Fifty Thousand ($250,000.00) Dollars in respect of his services during the Employment Period,
subject to annual review by the Board for increase.
3.2 Bonuses. In addition to the Executive’s Base Salary, the Executive shall
be eligible to receive an annual cash bonus in such amount as shall be determined by the
Board.
For the fiscal year during the Employment Period commencing on July 1, 2007 and ending June
30, 2008, subject to Section 4 hereof, the Executive shall receive a cash bonus of at least
$100,000 (at least $250,000 if the Company completes a Public Offering or Change of Control in
such fiscal year). Payment of the bonus shall be made at such time as determined by the Board;
provided, however, that such bonus must be paid on or before July 31 immediately following the
end of the fiscal year for which such bonus is payable.
3.3 Fringe Benefits. The Executive shall be entitled to participate in all bonus,
perquisite and benefit programs that the Company makes available to its senior executives, if
any, to the extent that the Executive’s position, tenure, salary, age, health and other
qualifications
make him eligible under the terms of the applicable program (as amended from time to time) to
participate, including without limitation (i) long-term disability insurance paid by the
Company,
(ii) business travel accident insurance and (iii) reimbursement (in accordance with Section
3.4
hereof) of all expenses. Notwithstanding the foregoing, the Company agrees to waive any and
all waiting or probationary periods applicable to Executive’s eligibility for the medical and
insurance benefits as a senior executive of the Company. The Executive shall be entitled to
four
(4) weeks of paid vacation per calendar year (prorated for any partial year) plus Federal
holidays.
3.4 Reimbursement of Expenses. The Company shall reimburse the Executive
for all reasonable travel, entertainment, communication technologies (i.e., laptop computer,
cell
phone and Blackberry) and other expenses incurred or paid by the Executive in connection with,
or related to, the performance of his duties, responsibilities or services under this
Agreement,
upon presentation by the Executive of documentation, expense statements, vouchers and/or such
other supporting information as the Company may reasonably request. The Company also agrees
to reimburse the Executive, up to a maximum amount of $8,000 per month, for the rental
expense of an apartment in New York City for the first three months following the Effective
Date. The Company shall reimburse the Executive for any and all out-of-pocket expenses
incurred by the Executive in connection with his relocation to Xxx Xxxx, Xxx Xxxx (xx xxx Xxx
Xxxx xxxxxxxxxxxx xxxx) incurred by the Executive within eighteen (18) months of the date
hereof. Such expenses include, but are not limited to, moving, shipping, packing, packaging
and
insuring household goods and possessions, realtor and real estate agency fees and commissions,
and bank and other closing costs. All of the expenses reimbursed hereunder shall be made on an
After Tax Basis. “After-Tax Basis” shall mean with respect to any payment to be received or
deemed to be received by the Executive, the amount of such payment (the “Base Payment”)
supplemented by a further payment (the “Additional Payment”) to the Executive so that the sum
of the Base Payment plus the Additional Payment shall, after deducting all taxes imposed on
such Executive as a result of the receipt or accrual of the Base Payment and the Additional
Payment, will be equal to the Base Payment.
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3.5 Indemnification. If the Executive is made a party or is threatened to be
made a party to any Proceeding (as defined in Section 9 below) by reason of the fact that he
is or
was a director, officer, member, employee, agent, manager, trustee, consultant or
representative
of the Company or any of its affiliates or is or was serving at the request of the Company or
any
of its affiliates, or in connection with his service hereunder, as a director, officer,
member,
employee, agent, manager, trustee, consultant or representative of another person, or if any
Claim (as defined in Section 9 below) is made or is threatened to be made that arises out of
or
relates to the Executive’s service in any of the foregoing capacities, then the Executive
shall
promptly be indemnified and held harmless to the fullest extent permitted or authorized by the
Articles of Incorporation or Bylaws of the Company, or if greater, by applicable law, against
any
and all reasonable costs, reasonable expenses, liabilities and losses (including, without
limitation,
reasonable attorneys’ and other professional fees and charges, judgments, interest, reasonable
expenses of investigation, penalties, fines, ERISA excise taxes or penalties and amounts paid
or
to be paid in settlement) incurred or suffered by the Executive in connection therewith or in
connection with seeking to enforce his rights under this Section 3.5, and such indemnification
shall continue as to the Executive even if he has ceased to serve in any such capacity, and
shall
inure to the benefit of his heirs, executors and administrators. The Executive shall be
entitled to
prompt reimbursement of any and all costs and expenses (including, without limitation,
reasonable attorneys’ and other professional fees and charges) reasonably incurred by him in
connection with any such Proceeding or Claim, or in connection with seeking to enforce his
rights under this Section 3.5, any such reimbursement to be made within 30 days after the
Executive gives written notice, supported by reasonable documentation, requesting such
reimbursement, and in all cases not later than March 15 of the calendar year following the
calendar year in which such expenses were incurred. Such notice shall include an undertaking
by the Executive to promptly repay the amount paid if he is ultimately determined not to be
entitled to indemnification against such costs and expenses; provided that repayment shall
occur
no later than 60 days following the applicable determination. Nothing in this Agreement shall
operate to limit or extinguish any right to indemnification, reimbursement of expenses, or
contribution that the Executive would otherwise have (including, without limitation, by
agreement or under applicable law).
3.6 Stock Options. To induce the Executive to enter into this Agreement, the
Company hereby grants to the Executive stock options (the “Stock Options”) in the Company
upon the terms and conditions set forth on Annex A hereto.
4. Employment Termination. Notwithstanding Section 1, the
Executive’s employment under this Agreement shall terminate upon the occurrence of any of the
following:
4.1 at the election of the Company, for Cause (as defined in Section 9 below),
upon 10 days written notice by the Company to Executive;
4.2 upon the death of, or 30 days’ after written notice upon the Disability (as
defined in Section 9 below) of, the Executive;
4.3 at the election of the Executive, for Good Reason (as defined in Section 9
below), upon 30 days’ written notice by the Executive to the Company; and
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4.4 in the event that none of Sections 4.1, 4.2 and 4.3, at the election of either party,
upon 30 days’ written notice to the other party.
5. Effect of Termination.
5.1 Termination by Company for Cause or by Executive Voluntarily. If the
Executive’s employment hereunder is terminated by the Company for Cause in accordance with
Section 4.1 above, or if the Executive terminates his employment hereunder in accordance with
Section 4.4 above, the Executive shall receive the benefits described in Section 5.4 below.
Subject to the foregoing, the Company shall have no further obligations to the Executive hereunder.
5.2 Termination by Company Without Cause or by Executive for Good
Reason. If the Executive’s employment hereunder is terminated by the Company in
accordance
with Section 4.4 above, or if the Executive terminates his employment hereunder for Good
Reason in accordance with Section 4.3 above:
(i) the Company shall pay to the Executive an amount equal to the Executive’s then
Base Salary as of the Termination Date, payable in equal monthly installments due on the
first business day of each month during the twelve (12) month period immediately following
such termination;
(ii) the Executive shall be entitled to continued participation pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) in all
insurance and benefit plans providing medical coverage, to the extent such plans are then
provided by the Company, at the same benefit level which is provided to other executives of
the Company until the last day of the coverage period mandated by COBRA, provided,
that, during the twelve (12) month period commencing on the Termination Date, the
premium cost of the coverage provided pursuant to this Section 5.2(ii) shall be paid in
full by the Company; and
(iii) the Executive shall receive the benefits described in Section 5.4 below.
Notwithstanding the foregoing, if the Executive’s employment hereunder is terminated by the
Company Without Cause or by the Executive for Good Reason (a) following a Change of Control
or (b) within six months prior to the consummation of a Change of Control, the Executive
shall receive all of the Base Salary, benefits and other amounts payable hereunder for the
then remaining term of the Employment Period, but in no event for a period of less than
twelve (12) months.
5.3 Termination Upon Death or Disability or Expiration of Employment
Period. If the Executive’s employment hereunder is terminated as a result of his
death or
because of his Disability as determined pursuant to Section 4.2 above, or upon expiration of
the
Employment Period, the Company shall provide to the Executive the benefits described in
Section 5.4 below.
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5.4 Other Accrued Benefits. Upon any termination of the Executive’s
employment hereunder, he shall be entitled to:
(i) any unpaid Base Salary through the Termination Date;
(ii) subject to the terms of the applicable award or arrangement, the balance of any
annual, long-term bonus or other incentive award earned in respect to any fiscal year
ending on or prior to the Termination Date, or payable (but not yet paid) on or prior to
the Termination Date;
(iii) subject to the terms of the actual award or arrangement and provided that
Executive is not terminated for Cause or does not terminate his employment without Good
Reason, any amounts payable with respect to the fiscal year in which termination occurs
under any annual, long-term bonus or other incentive award (prorated for the portion of the
year Executive was employed by the Company);
(iv) any other benefits accrued as of the Termination Date in accordance with the
terms of the applicable plans, programs and arrangements of the Company (including, without
limitation, benefits under Sections 3.3, 3.4, 3.5 and 10.9);
(v) provided that Executive is not terminated for Cause or does not terminate his
employment without Good Reason, the unpaid bonus, payable pursuant to Section 3.2 to the
extent that the Public Offering or Change of Control has been consummated, regardless of
when in such fiscal year such termination occurs;
(vi) payment in accordance with the payroll practices of the Company, of all amounts
due in connection with the termination, such payments to be made by wire transfer of
same-day funds to the extent reasonably requested by the Executive.
Any amounts payable pursuant to this Section 5.4 shall be paid no later than 60 days after the
Termination Date, unless an alternative payment schedule is provided for under this Agreement or
the applicable plan, award or arrangement.
5.5 Miscellaneous. In the event of any termination of the Executive’s
employment hereunder, the Executive shall be under no obligation to seek other employment or
otherwise mitigate the obligations of the Company under this Agreement, and there shall be no
offset against amounts or benefits due the Executive under this Agreement or otherwise on
account of any remuneration or other benefit earned or received after such termination. Any
amounts due to the Executive under this Section 5 are considered to be reasonable by the
Company and are not in the nature of a penalty.
5.6 Survival. Except as otherwise set forth in this Agreement, the respective
rights and obligations of the parties shall survive any termination of the Executive’s
employment
hereunder.
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6. Restrictions.
6.1 Non-Solicitation and Non-Competition. During the Employment Period
and for one (1) year thereafter, the Executive will not directly or indirectly, alone or in
association with others, other than in connection with performing his duties for the Company:
(i) (A) recruit, solicit or induce any employee or consultant of
the Company or any of its affiliates to terminate his or her employment with, or otherwise cease
his or her relationship with, the Company or any of its affiliates, or (B) employ or retain any
employee of the Company or any of its affiliates within six (6) months of the date that such
employee or individual ceases providing services to the Company or any of its affiliates;
(ii) solicit, divert or take away the business or patronage of any
customer, supplier or other business relation of the Company or any of its affiliates who have
done business with the Company during the twelve month period prior to the Termination Date or who
are a potential customer, supplier or other business relation with which the Company or any of its
affiliates is currently attempting to establish a relationship at the time of the Termination
Date; or
(iii) own, manage, operate, sell, control or participate in the
ownership, management, operation, sales or control of, be involved with the development efforts
of, serve as a technical advisor to, license intellectual property to, provide services to or in
any manner engage in any business that competes with any business in which the Company or any of
its affiliates is engaged as of the Termination Date; provided, however, that Executive may own as
a passive investor up to 5.0% of any class of an issuer’s publicly traded securities.
6.2 Business Scope and Geographical Limitation. Executive acknowledges (i)
that the business of the Company and its affiliates is, and is expected to remain,
international in
scope and without geographical limitation; (ii) notwithstanding the state of incorporation or
principal office of the Company or any of its affiliates, or any of their respective
executives or
employees (including Executive), it is expected that the Company and its affiliates will have
business activities and have valuable business relationships within its industry throughout
the
world; and (iii) as part of his responsibilities, Executive will travel around the world in
furtherance of the Company’s and its affiliates’ businesses and their relationships.
Accordingly,
the restrictions set forth in this Section 6 shall be effective in all cities, counties and
states of the
United States and all countries in which the Company or any of its affiliates has an office as
of the Termination Date.
6.3 Additional Acknowledgments. Executive acknowledges that the
provisions of this Section 6 are in consideration of employment with the Company and the
additional good and valuable consideration as set forth in this Agreement.
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7. Confidential Information.
7.1 Obligation to Maintain Confidentiality. Executive acknowledges that the
information and data obtained by him during the course of his performance under this Agreement
concerning the business and affairs of the Company and its affiliates are the property of the
Company or such affiliates, including information concerning acquisition opportunities in the
Company’s or any of its affiliates’ industry of which Executive becomes aware during the
Employment Period (such information or data, the “Confidential Information”). Therefore,
Executive agrees that he will not disclose to any unauthorized person or use for his own
account
any of the Confidential Information without the prior written consent of the Board, unless,
and
then only to the extent that, the aforementioned Confidential Information (i) become generally
known to the public other than as a result of Executive’s acts or omissions to act, (ii) was
already
known to the Executive prior to his employment hereunder, or (iii) became known to the
Executive from a third party owing no duty of confidentiality to the Company. Executive agrees
to destroy or to deliver to the Company upon termination of employment any and all property
belonging to the Company and its affiliates in his possession or under his control including,
but
not limited to, any memoranda, notes, plans, records, reports, documents, discs and other data
storage media (and any copies thereof).
7.2 Ownership of Property. Executive expressly understands and agrees that
any and all right, title or interest he has or obtains in any documentation, trade secrets,
technical
specifications, data, know-how, inventions, concepts, ideas, techniques, innovations,
discoveries,
improvements, developments, methods, processes, programs, designs, analyses, drawings,
reports, memoranda, marketing plans, and all similar or related information (whether or not
patentable) conceived, devised, developed, contributed to, made, reduced to practice or
otherwise
had or obtained by Executive (either solely or jointly with others) during the Employment
Period
that relate to the Company’s or any of its affiliates’ actual or anticipated business,
research and
development, or existing or future products or services, or that arise out of Executive’s
employment with the Company or any of its affiliates (including any of the foregoing that
constitutes any proprietary information or records) (“Work Product”) belong to the Company or
the respective affiliate, and Executive hereby assigns, and agrees to assign, all of the above
Work
Product to the Company or to such affiliate. Any copyrightable work prepared in whole or in
part by Executive in the course of his work for any of the foregoing entities shall be deemed
a “work made for hire” under the copyright laws, and the Company or such affiliate shall own all
rights therein. To the extent that any such copyrightable work is not a “work made for
hire,”
Executive hereby assigns, and agrees to assign, to the Company or the respective affiliate all
of
his right, title and interest in and to such copyrightable work. Executive shall promptly
disclose
such Work Product and copyrightable work to the Board and perform all actions reasonably
requested by the Board (whether during or after the Employment Period) to establish and
confirm the Company’s or the respective affiliate’s ownership therein (including executing and
delivering any assignments, consents, powers of attorney and other instruments).
7.3 Third Party Information. Executive understands that the Company and its
affiliates will receive from third parties confidential or proprietary information (“Third
Party
Information”) subject to a duty on the Company’s and such affiliates’ part to maintain the
confidentiality of such information and to use it only for certain limited purposes. During
the
Employment Period and thereafter, and without in any way limiting the provisions of Section
7.1
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above, Executive will hold Third Party Information in the strictest confidence and will not
disclose to anyone (other than in the ordinary course of Executive’s duties for the benefit of the
Company or any subsidiary or affiliate of the Company) or use, except in connection with his work
for the Company or such affiliates, Third Party Information without the prior written consent of
the Board.
8. Representations.
(a) As an inducement to the Company to enter into this Agreement,
the Executive represents and warrants that there exists no contractual impediment on the
Executive’s power, right or ability to enter into this Agreement and to perform the
Executive’s
duties and obligations hereunder, other than restrictions whose breach results solely in
forfeiture
of benefits to which the Executive might otherwise be entitled.
(b) The Company represents and warrants that (i) it is fully authorized
by action of its Board to enter into this Agreement and to perform its obligations under it,
(ii) the
execution, delivery and performance of this Agreement by it does not violate any applicable
law,
regulation, order, judgment or decree or any agreement, arrangement, plan or corporate
governance document to which it is a party or by which it is bound and (iii) upon the
execution
and delivery of this Agreement by the parties, this Agreement shall be its valid and binding
obligation, enforceable against it in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting
the
enforcement of creditors’ rights generally.
9. Certain Definitions. For purposes of this Agreement, the following terms shall
have the meanings specified in this Section 9:
“Cause” means: (i) perpetration by the Executive of act involving fraud with respect
to the Company or any of its affiliates; (ii) substantial failure on the part of the
Executive in his performance of his duties as reasonably directed by the Board, after
notice to Executive and a reasonable opportunity to cure, (iii) the engaging in by the
Executive of gross misconduct, or gross negligence in the performance of his duties, which
materially injures the Company, (iv) the material breach by Executive of Sections 6 or 7 of
this Agreement, which materially injures the Company or (v) the conviction of the Executive
of, or the entry of a pleading of guilty or nolo contendere by the Executive to, any felony
(excluding automobile related offenses).
“Change of Control” shall be deemed to have occurred if any of the following events
occurs after the Effective Date: (i) any person or group (within the meaning of Rule 13d-3
of the rules and regulations promulgated under the Securities Exchange Act) shall become, in
one or a series of transactions, whether through sale of stock, merger, or otherwise, the
beneficial owner of securities of the Company that possesses more than fifty percent (50%)
of the total voting power of the then outstanding securities of the Company, or of any
successor to the Company or to substantially all the business and assets of the Company;
(ii) a merger, consolidation or other transaction in which the Company combines with another
entity and after which the security holders of the Company do not retain, directly or
indirectly, and in respect of voting securities of the
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Company that they beneficially owned prior to such transaction, at least a majority of the
beneficial interest in the voting securities of the surviving entity; or (iii) the sale, exchange,
or other transfer of all or substantially all of the Company’s business or assets.
“Claim” means any claim, demand, request, investigation, dispute, controversy, threat,
discovery request, or request for testimony or information.
“Code” means the Internal Revenue Code of 1986, as amended. Reference to a particular section
of the Code shall include any provision that modifies, replaces or supersedes such section.
“Disability” means that the Executive has been unable, due to physical or mental incapacity,
for a period of 90 consecutive days within any 365 consecutive day period to substantially perform
all of the material services contemplated under this Agreement. A determination of Disability shall
be made by the Executive (or his legal representative, if he is incapable) and the Company each
selecting a physician and these two together shall select a third physician, whose determination as
to disability shall be binding on all parties.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Good Reason” means: (i) any breach by the Company, or any of its affiliates, of any material
provision of this Agreement, which breach has not been cured within 30 days after notice of such
breach, referencing Section 4.3 and describing the nature of such breach, has been given by the
Executive to the Company; (ii) any diminution in the Executive’s title or Base Salary (iii) any
material reduction in benefits provided to Executive pursuant to Section 3.3 or 3.4, other than in
connection with a reduction in benefits generally applicable to senior executives of the Company;
(iii) any substantial diminution in the Executive’s overall duties and responsibilities or
reporting obligations, which diminution has not been cured within 30 days after notice of such
diminution, referencing Section 4.3 and describing the nature of such diminution, has been given by
the Executive to the Company; (iv) any requirement by the Company that the Executive spend the
majority of his business time in a location or locations other than in New York, New York, or (v) a
Change of Control and the surviving entity shall not assume the obligations of the Company
hereunder.
“Proceeding” means any actual or threatened suit or proceeding, whether civil, criminal,
administrative, investigative, appellate, formal, informal or other.
“Public Offering” means: (i) the sale in an underwritten public offering registered under the
Securities Act of shares of the Company’s common stock resulting in the listing of the Company’s
common stock on the Nasdaq Stock Market, the New York Stock Exchange or the American Stock
Exchange or (ii) registration under the Securities Exchange Act of shares of the Company’s common
stock and the listing of the
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Company’s common stock on the Nasdaq Stock Market, the New York Stock Exchange or the
American Stock Exchange.
“Securities Act” means the United States Securities Act of 1933, as amended from time
to time.
“Securities Exchange Act” means the United States Securities Exchange Act of 1934, as
amended from time to time.
“Termination Date” means the date that the Executive’s employment under this Agreement
terminates for any reason.
10. Miscellaneous.
10.1 Notices. All notices required or permitted under this Agreement shall be
in writing and shall be deemed effective upon personal delivery (which shall include delivery
by
Federal Express or similar service) or upon deposit in the United States Post Office, by
registered
or certified mail, return receipt requested, postage prepaid, addressed to the other party at
the
address shown above, or at such other address or addresses as either party shall designate to
the
other in accordance with this Section 10.1.
10.2 Entire Agreement. This Agreement, together with the documents referred
to in it, constitutes the entire agreement between the parties concerning its subject matter
and
supersedes all prior agreements and understandings, whether written or oral, relating to its
subject matter. There shall be no contractual or similar restrictions on the Executive’s
activities
following the termination of his employment with the Company, other than as expressly set
forth
in this Agreement. In the event of any inconsistency between any provision of this Agreement
and any provision of any handbook, manual, program, policy, agreement, plan, corporate
governance document, or other arrangement of the Company or any of its affiliates, the
provisions of this Agreement shall control unless the Executive otherwise agrees in a writing
that
expressly refers to the provision of this Agreement whose control he is waiving.
10.3 Amendment. This Agreement may be amended or modified only by a
written instrument that is executed by both parties and that specifically identifies the
provision(s)
and/or Section(s) of this Agreement being amended.
10.4 Waivers. No delay or omission by either party hereto in exercising any
right under this Agreement shall operate as a waiver of that or any other right. No waiver by
any
person of any breach of any condition or provision contained in this Agreement shall be deemed
a waiver of any similar or dissimilar breach at the same or any prior or subsequent time. To
be
effective, any waiver must be set forth in a writing signed by the waiving person and must
specifically refer to the condition(s) or provision(s) of this Agreement being waived.
10.5 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors, heirs (in the case of the Executive) and assigns.
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(b) No rights or obligations of the Company under this Agreement
may be assigned or transferred by the Company except that such rights and obligations may be
assigned or transferred pursuant to a merger, consolidation or other combination in which the
Company is not the continuing entity, or a sale or liquidation of all or substantially all of
the
business and assets of the Company, provided that the assignee or transferee is the successor
to
all or substantially all of the business and assets of the Company and such assignee or
transferee
expressly assumes the liabilities, obligations and duties of the Company as set forth in this
Agreement. In the event of any merger, consolidation, other combination, sale of business and
assets, or liquidation as described in the preceding sentence, the Company shall use its best
efforts to cause such assignee or transferee to promptly and expressly assume the liabilities,
obligations and duties of the Company hereunder.
(c) The Executive shall be entitled, to the extent permitted under
applicable law and applicable Company benefit plans, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit hereunder following the Executive’s death
by giving written notice thereof to the Company. In the event of the Executive’s death or a
judicial determination of his incompetence, references in this Agreement to the Executive
shall
be deemed, where appropriate, to refer to his beneficiary, estate or other legal
representative.
10.6 Governing Law. This Agreement shall be governed, construed,
interpreted and enforced in accordance with its express terms, and otherwise in accordance
with
the laws of the State of New York without regard to its conflicts of law principles.
10.7 Arbitration. All disputes concerning the application, interpretation or
enforcement of this Agreement or otherwise arising out of the relationship between Executive,
on the one hand, and the Company, on the other hand, except for those arising under Section 6
or
7 of this Agreement, shall be resolved exclusively by final and binding arbitration before a
single
arbitrator in accordance with the Employment Rules of the American Arbitration Association
then in effect. The arbitration shall be held in New York City, and the arbitrator shall have
the
authority to permit the parties to engage in reasonable pre-hearing discovery.
10.8 Jurisdiction. Any Claim arising out of or relating to this Agreement, other
than a Claim covered by Section 10.7, may be brought in the federal or state courts located in
New York. By execution and delivery of this Agreement, each of the parties hereto accepts for
himself or itself and in respect of his or its property, generally and unconditionally, the
jurisdiction of the aforesaid courts and waives any objection it may now or hereafter have as
to
the venue of any proceeding brought in any such court in connection herewith or that any such
court is an inconvenient forum.
10.9 Advancement of Costs and Expenses. The Company shall promptly
advance to the Executive (or his beneficiaries, if applicable) any cost (including reasonable
attorneys’ fees) incurred by them in connection with any Claim arising out of or relating to
this
Agreement, subject to prompt repayment by the recipient in the event that the Company (and its
affiliates, if applicable) substantially prevails with respect to such Claim. Pending the
resolution
of any Claim under Section 10.7 or otherwise, the Executive (and his beneficiaries) shall
continue to receive all payments and benefits due under this Agreement or otherwise.
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10.10 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
ACTIONS OF THE PARTIES TO THIS AGREEMENT IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
10.11 Captions. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or substance of
any
section of this Agreement.
10.12 Severability. In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
10.13 Taxes. The Company may withhold from any amount or benefit payable
under this Agreement taxes that it is required to withhold pursuant to any applicable law or
regulation.
10.14 Counterparts; Facsimile Signatures. This Agreement may be executed in
any number of counterparts, each of which will be deemed an original, and all of which will
constitute one and the same instrument. Signatures delivered by facsimile or by PDF shall be
effective for all purposes.
[SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the day
and year set forth above.
| Company: GLOBE SPECIALTY METALS INC. |
||||
| By: | /s/ Xxxx Xxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
| Executive: |
||||
| /s/ Xxxxxx Xxxxxxxxx | ||||
| Xxxxxx Xxxxxxxxx | ||||
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