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EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 1st day of
April , 2000, by and between XXXXXXX X. XXXXX (the "Executive") and METAL
MANAGEMENT, INC., a Delaware corporation (the "Company").
WHEREAS, the Executive is currently employed by the Company; and
WHEREAS, the Company desires to continue to employ the Executive and the
Executive desires to continue in such employment;
NOW, THEREFORE, in consideration of the promises, mutual covenants and
agreements contained herein, the Company and the Executive do hereby agree as
follows:
1. EMPLOYMENT AND DUTIES. On the terms and subject to the conditions set forth
in this Agreement, the Company agrees to employ the Executive as the President
and Chief Operating Officer of the Company to perform such duties and
responsibilities as are consistent with such positions.
2. PERFORMANCE. The Executive accepts the employment described in Section 1
above, and agrees to faithfully and diligently perform the duties and
responsibilities described therein. The Executive shall devote time and
attention to matters of the Company such that the Executive's services to the
Company constitute his primary business activity. The Company acknowledges that
the Executive may (a) engage in charitable and community affairs (including
serving on the board of directors or similar management body of any charitable
or community organization), (b) serve on the board of directors of or act as a
consultant to other companies which are not engaged in a business that directly
or indirectly competes with the Company Business (as defined in Section 16
below), and (c) make personal investments.
3. TERM. The term of employment under this Agreement shall commence on the date
of this Agreement (the "Commencement Date") and shall continue for a period of
three (3) years thereafter (the "Employment Period"); provided, however, that as
of the first anniversary thereof, the Employment Period shall automatically be
extended for an additional one year period (such that the total remaining term
of the Employment Period is then three (3) years) unless, at least sixty (60)
days before the first anniversary of the Commencement Date, either the Executive
or the Company, as the case may be, notifies the other of its desire not to
further extend the Employment Period; and provided, further, that as of each
anniversary of the Commencement Date after the first anniversary thereof, the
Employment Period shall automatically be extended for an additional one year
period (such that the total remaining term of the Employment Period is then
three (3) years) unless, at least sixty (60) days before such anniversary of the
Commencement Date, either the Executive or the Company, as the case may be,
notifies the other of its desire not to further extend the Employment Period.
Notwithstanding the foregoing, the
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Executive's employment shall terminate upon the earliest to occur of the events
described in Section 13 hereunder. For purposes of this Agreement, "Balance of
the Term" shall mean the period beginning on the date of the Executive's
termination of employment and ending on the date that the Employment Period
would have ended pursuant to this Section 3 due to lapse of time (assuming no
further extensions of the Employment Period beyond those already approved as of
the date of termination), without regard to Section 13.
4. SALARY. For all the services to be rendered by the Executive hereunder, the
Company agrees to pay, during the Employment Period, a base salary ("Salary") at
an initial rate of Three Hundred and Forty Five Thousand Dollars ($345,000.00)
per Contract Year (as defined below), payable in the manner and frequency in
which the Company's payroll is customarily handled. For purposes of this
Agreement, "Contract Year" shall mean a one-year period commencing on the
Commencement Date or on any anniversary of the Commencement Date. The Company
may increase the Executive's Salary at any time, or from time to time, during
the Employment Period; provided, however, that the Company may not at any time
reduce the Salary from its then-current level.
5. INCENTIVE COMPENSATION. In addition to the Executive's Salary, the Company
shall pay to the Executive, during the Employment Period, incentive compensation
as determined from time to time by the Company, which incentive compensation may
be in the form of stock options, bonuses or such other method as may be
determined from time to time by the Company. In evaluating the Executive for
bonus compensation from time to time, the Executive shall be classified in the
same category as the Chief Executive Officer of the Company.
6. VACATION. In accordance with the policies and rules governing the vacation of
other senior executives of the Company, the Executive shall be entitled to take
vacations with pay, during each year of service under this Agreement, to be
taken during the year at such time or times as may be approved by the Company.
Such vacation shall be at least five (5) weeks. Unless otherwise established for
other senior executives of the Company, unused vacation days shall not be
accumulated from one year to the next.
7. SICK LEAVE. In accordance with the policies and rules governing the sick
leave of other senior executives of the Company, the Executive shall be allowed
paid sick leave during each year of service under this Agreement. Unless
otherwise established for other senior executives of the Company, unused sick
leave shall not be accumulated from one year to the next.
8. DISABILITY BENEFIT. If at any time during the Employment Period the Executive
is unable to perform fully his duties hereunder for a period of six (6)
consecutive months by reason of illness, accident, or other physical or mental
disability (as confirmed by competent medical evidence) and such condition may
reasonably be expected to be permanent ("Total Disability"), the Executive shall
be entitled to receive (a) any accrued but unpaid Salary, prorated annual cash
bonus, prorated vacation, and any other amounts accrued but unpaid as of the
date of termination, and (b) any and all disability benefits then generally
available to other senior executives of the
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Company. In the event that there is no established policy regarding disability
benefits afforded to other senior executives of the Company or if such benefits
are less than seventy percent (70%) of the Executive's then-current Salary and
annual cash bonus for the Balance of the Term, then the Executive shall be
entitled to receive periodic payments of seventy percent (70%) of his
then-current Salary and the cash bonus paid to the Executive for the preceding
calendar year for the Balance of the Term. If any dispute regarding the
existence of the Executive's Total Disability arises, each party shall appoint a
physician and such physicians shall jointly appoint a third physician, the
decision of any two (2) of such physicians regarding the existence of Total
Disability shall be binding upon the parties. Notwithstanding the foregoing
provision, the amounts payable to the Executive pursuant to this Section 8 shall
be reduced by any amounts received by the Executive with respect to any such
incapacity pursuant to any insurance policy, plan, or other employee benefit
provided to the Executive by the Company.
9. DEATH BENEFIT. In the event of the death of the Executive during the
Employment Period, the Company shall pay (a) any accrued but unpaid Salary,
prorated cash bonus (based on the number of days elapsed in the applicable
fiscal year), prorated vacation and any other amounts accrued but unpaid as of
the date of termination, and (b) any and all death benefits then generally
available to other senior executives of the Company. In the event that there is
then no established policy regarding death benefits generally afforded to senior
executives of the Company or if such benefits are less than a lump-sum payment
equal to the Executive's then-current Salary and the annual cash bonus paid to
the Executive for the calendar year immediately preceding his death, then the
Company will pay as a survivor's benefit a lump-sum amount equal to the
Executive's then-current Salary and the annual cash bonus paid to the Executive
for the calendar year immediately preceding his death. The benefits payable
under this Section 9 shall be paid to the person or persons designated by the
Executive on the form provided by the Company or, in the absence of such a
designation, as follows: (i) to the Executive's spouse if she survives him; (ii)
if the Executive's spouse fails to survive the Executive, then in equal shares
to the Executive's children who survive him; or (iii) if neither Executive's
spouse nor any child survives the Executive, then all to the Executive's estate.
10. INSURANCE. During the Employment Period, the Company shall apply for,
procure and pay for, in the Executive's name and for the Executive's benefit,
with the Executive's designee as the beneficiary, a policy of group term life
insurance with a face value of One Million Dollars ($1,000,000), which policy
shall be owned by the Executive. The Executive shall submit to any medical or
other examination and execute and deliver any application or other instrument in
writing reasonably necessary to effectuate such insurance.
11. OTHER COMPENSATION, BENEFITS AND PERQUISITES. In addition to the types of
compensation, benefits and perquisites described in the preceding Sections of
this Agreement, the Executive shall be entitled to participate in all other
types of compensation, benefits and perquisites which are generally made
available to other senior executives of the Company such as, but not limited to:
cash bonuses, stock option plans; 401(k) plans; welfare plans; business travel
policies; car allowance; medical insurance; dental insurance; dues, fees and
costs (including travel)
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associated with membership and participation in professional, educational and
other clubs and organizations, and attendance at professional, educational and
other programs, presentations, workshops, seminars and conventions, the levels
of participation in which shall be determined from time to time by the Company's
Board of Directors (the "Board"). Without limiting the generality of the
foregoing, it is expressly agreed that (a) the Executive's car allowance from
the Company shall never be less than One Thousand Dollars ($1000.00) per month,
(b) the Company shall supply and pay all of the costs, fees and charges in
regard to a Company phone at the Executive's home office (if any) and a cellular
phone.
12. BUSINESS EXPENSE REIMBURSEMENT. The Company shall reimburse the Executive
for the reasonable, ordinary, and necessary business expenses incurred by him in
connection with the performance of his duties hereunder, including, but not
limited to, ordinary and necessary travel, entertainment and phone expenses. The
Executive shall provide the Company with an accounting of his expenses, which
accounting shall clearly reflect which expenses are reimbursable by the Company.
The Executive shall provide the Company with such other supporting documentation
and other substantiation of reimbursable expenses as will conform to Internal
Revenue Service regulations or other requirements. All such reimbursements shall
be payable by the Company to the Executive within a reasonable time after
receipt by the Company of appropriate documentation thereof; provided, however,
the Company shall have no obligation to reimburse any expenses for which
appropriate and customary back-up documentation is not provided within ninety
(90) days following accrual of the obligation in question.
13. TERMINATION.
(a) UNILATERAL TERMINATION. The Executive's employment hereunder may be
terminated during the Employment Period by the Company by written notice of
termination given to the Executive at least ninety (90) days in advance of the
termination date stated in such notice.
(b) TERMINATION FOR JUST CAUSE. The Company shall have the option to terminate
the Executive's employment during the Employment Period, effective upon written
notice of such termination to the Executive, for Just Cause as determined by the
Board. For purposes of this Agreement, the term "Just Cause" shall mean the
occurrence of any one or more of the following events:
(i) The willful and continued failure by the Executive to substantially
perform his duties with the Company (other than any such failure resulting
from termination by the Company pursuant to Section 13(a), Total Disability
or death) after a demand for substantial performance is delivered to the
Executive that specifically identifies the manner in which the Company
believes that the Executive has not substantially performed his duties, and
the Executive fails to resume substantial performance of his duties on a
continuous basis within fourteen (14) days of receiving such demand;
provided that if it is not reasonably possible for the Executive to resume
such substantial performance within such fourteen (14) days,
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then such fourteen (14) day time period shall be extended to that minimum
period of time during which it is reasonably possible for the Executive to
resume such substantial performance;
(ii) The willful engaging by the Executive in conduct which is
demonstrably and materially injurious to the Company, monetarily or
otherwise and the Executive's failure to cease engaging in such conduct
within fourteen (14) days after a demand for such cessation is delivered to
the Executive by the Company that specifically identifies such conduct; or
(iii) the Executive knowingly participates or engages in any act of fraud,
embezzlement, or theft (regardless of whether such act results in a
criminal conviction) or the Executive is convicted of a felony or
misdemeanor which materially impairs the Executive's ability to perform his
duties with the Company.
For purposes of this Section 13(b), an act, or failure to act, on the
Executive's part, shall not be deemed "willful" unless done, or omitted to be
done, by the Executive not in good faith and without a reasonable belief that
his action or omission was in the best interest of the Company. Notwithstanding
the foregoing, during the one year period immediately following a Change in
Control (as defined in Section 13(f)), "Just Cause" shall not include the events
described in paragraph (i) and any termination of the Executive's employment by
the Company during such one year period for any of the events described in
paragraph (i) shall be treated as a termination by the Company pursuant to
Section 13(a).
(c) TERMINATION UPON DEATH. The Executive's employment shall automatically
terminate upon the death of the Executive, without further action by the
Company.
(d) TERMINATION UPON DISABILITY. The Executive's employment shall terminate
thirty (30) days after the Company notifies the Executive of a determination of
Total Disability (as defined above) of the Executive, provided the Executive
does not dispute such determination as provided in Section 8 hereof, in which
case the date of termination for Total Disability shall be the date the
Executive is determined to have a Total Disability pursuant to Section 8 hereof.
(e) TERMINATION FOR GOOD REASON. The Executive shall have the right to resign
for Good Reason (as defined below) and any such resignation shall be deemed a
termination by the Company of the Executive's employment pursuant to Section
13(a). For purposes of this Agreement, "Good Reason" shall mean (i) any material
breach by the Company of its obligations hereunder which is not cured within
fourteen (14) days of written notice from the Executive to the Company
describing such breach, (ii) any transfer of the Executive's principal work
location to a location outside a radius of 50 miles from the downtown business
district of Chicago, Illinois, or (iii) the termination by the Executive of his
employment with the Company for any reason or no reason at all at any time
during the one-year period immediately
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following the date the Executive receives notice of non-renewal of the
Employment Period from the Company pursuant to Section 3 herein.
(f) DEFINITION OF CHANGE IN CONTROL. For purposes of this Agreement, the term
"Change in Control" of the Company shall mean:
(i) A change in control of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
whether or not the Company is then subject to such reporting requirement,
that was not approved by the Board, provided that, without limitation, a
Change in Control shall be deemed to have occurred if the following events
occur without the affirmative vote of the Board.
(1) any "person" (as defined in sections 13(d) and 14(d) of the
Exchange Act), other than Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx, and Xxxxxxx
X. Xxxxx and their respective heirs, trusts, estates, personal
representatives, legatees and assigns, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing thirty percent
(30%) or more of the combined voting power of the Company's then
outstanding securities computed on a fully diluted basis (assuming the
conversion of all outstanding convertible securities of the Company
and the exercise of all options and warrants which, at the time of
determination, are vested and are exercisable at a price less than the
then market price of the Company's Common Stock);
(2) during any period of two (2) consecutive years (not including
any period prior to the Commencement Date), there shall cease to be a
majority of the Board comprised as follows: individuals who at the
beginning of the Employment Period constitute the Board and any new
director(s) whose election by the Board or nomination for election by
the Company's shareholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the Employment Period or whose election
or nomination for election was previously so approved; or
(3) the shareholders of the Company (I) approve a merger or
consolidation of the Company or a subsidiary of the Company with any
other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity)
at least eighty percent (80%) of the combined voting power of the
voting securities of the
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Company or such surviving entity outstanding immediately after such
merger or consolidation; or (II) approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets.
14. SURRENDER OF PROPERTIES. Upon the Executive's termination of employment with
the Company, regardless of the reason therefor, the Executive shall promptly
surrender to the Company all property provided him by the Company for use in
relation to his employment and, in addition, the Executive shall surrender to
the Company any and all sales materials, lists of customers and prospective
customers, price lists, files, records, models, or other materials and
information of or pertaining to the Company or its customers or prospective
customers or the products, business, and operations of the Company.
15. SEVERANCE PAY.
(a) Notwithstanding any other provision of this Agreement, if the Executive's
employment is (or is deemed) terminated by the Company pursuant to Section
13(a):
(i) the Company shall pay the Executive any accrued but unpaid
Salary, prorated vacation, prorated cash bonus and any other amounts
accrued but unpaid as of the date of termination;
(ii) the Company shall pay the Executive a lump-sum severance payment
equal to the greater of (1) the Executive's then-current Salary and
annual cash bonus for the calendar year preceding the year of
termination (determined as though the cash bonus would be paid for
each year in the Balance of the Term) for the Balance of the Term, or
(2) the product of 2.99 multiplied by the Executive's highest annual
cash compensation (as reported by the Company on Internal Revenue
Service Form W-2) earned by the Executive in any one of the three (3)
calendar years immediately preceding the calendar year in which the
termination occurs; and
(iii) the Company shall continue all medical, dental and life
insurance benefits at no cost to the Executive for twelve (12) months,
commencing on the date of the Executive's termination of employment
(and the provision by the Company of any such group health benefits
shall not be considered continuation coverage pursuant to section
4980B of the Internal Revenue Code of 1986, as amended (the "Code"),
and such continuation converge shall commence on the date that
benefits provided hereunder cease).
Other than as provided herein, if the Executive's employment is terminated by
the Company pursuant to Section 13(b) hereof, the Company shall pay to the
Executive any accrued but unpaid Salary, prorated vacation, prorated cash bonus
and any other amounts accrued but unpaid as of
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the date of termination. Any benefit payable pursuant to this Section 15 shall
be paid to the Executive in a lump-sum within thirty (30) days after the
Executive's termination of employment.
(b) In the event that the Executive becomes entitled to any severance payments
as provided herein, if it is determined that any such payments will be subject
to the tax or any other similar state or local excise taxes (the "Excise Tax")
imposed by section 4999 of the Code (or any similar tax that may hereafter be
imposed), the Company shall "gross up" such severance payments so that the
amount received by the Executive after payment of such Excise Tax shall be equal
to the amount to which the Executive was entitled prior to application of such
Excise Tax.
16. RESTRICTIVE COVENANTS. In addition to any other obligation of the Executive
under any other agreement with the Company, in order to assure that the Company
will realize the benefits of this Agreement and in consideration of the
employment set forth in this Agreement, the Executive agrees that he shall not
during the Employment Period and for a period of thirty six (36) months from the
Executive's termination of employment:
(a) directly or indirectly, alone or as a partner, joint venturer, member,
officer, director, employee, consultant, agent, independent contractor,
stockholder or in any other capacity of any company or business, engage in any
business activity in any state in which the Company owns a scrap metal yard or
scrap metal processing facility on the date of the Executive's termination of
employment which is directly or indirectly in competition with the Company
Business; provided, however, that, the beneficial ownership of less than 5% of
the shares of stock of any corporation having a class of equity securities
actively traded on a national securities exchange or over-the-counter market
shall not be deemed, in and of itself, to violate the prohibitions of this
Section 16;
(b) directly or indirectly (i) induce any person which is a customer of the
Company or any subsidiary or affiliate of the Company on the date of the
Executive's termination of employment to patronize any business directly or
indirectly in competition with the Company Business; (ii) canvass, solicit or
accept from any person that is a customer of the Company or any subsidiary or
affiliate of the Company on the date of the Executive's termination of
employment, any such competitive business, or (iii) request or advise any person
that is a customer of the Company Business on the date of the Executive's
termination of employment to withdraw, curtail, or cancel any such customer's
business with the Company or any affiliate or subsidiary of the Company; or
(c) directly or indirectly employ, or knowingly permit any company or business
directly or indirectly controlled by him, to employ, any person who was employed
by the Company or any subsidiary or affiliate of the Company on the date of the
Executive's termination of employment or within six months prior to the date of
the Executive's termination of employment, or in any manner seek to induce any
such person to leave his or her employment.
For purposes of this Agreement, "Company Business" shall mean scrap iron or
scrap metal
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recycling and/or processing conducted by the Company or its subsidiaries or
affiliates and any other business that the Company or its subsidiaries or
affiliates may be engaged in at the time of the Executive's termination of
employment.
(d) The Executive agrees and acknowledges that the restrictions contained in
this Section 16 are reasonable in scope and duration and are necessary to
protect the Company after the Commencement Date. If any provision of this
Section 16 as applied to any party or to any circumstances is adjudged by a
court to be invalid or unenforceable, the same will in no way affect any other
circumstance or the validity or enforceability of this Agreement. If any such
provision, or any part thereof, is held to be unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the duration
and/or area of such provision, and/or to delete specific words or phrases, and
in its reduced form, such provision shall then be enforceable and shall be
enforced. The parties agree and acknowledge that the breach of this Section 16
will cause irreparable damage to the Company and upon breach of any provision of
this Section 16, the Company shall be entitled to injunctive relief, specific
performance or other equitable relief; provided, however, that this shall in no
way limit any other remedies which the Company may have (including, without
limitation, the right to seek monetary damages).
17. CONFIDENTIALITY OF INFORMATION: DUTY OF NON-DISCLOSURE. The Executive
acknowledges and agrees that his employment by the Company under this Agreement
necessarily involves his understanding of and access to certain trade secrets
and confidential information pertaining to the business of the Company.
Accordingly, the Executive agrees that after the date of this Agreement at all
times, whether during the Employment Period or after the Executive's termination
of employment, he will not, directly or indirectly, without the prior written
consent of the Company or except as may be required by the lawful order of a
court or agency of competent jurisdiction disclose to or use for the benefit of
any person, corporation or other entity, or for himself any and all files, trade
secrets or other confidential information concerning the internal affairs of the
Company or its subsidiaries or affiliates, including, but not limited to,
information pertaining to its clients, services, products, earnings, finances,
operations, methods or other activities; provided, however, that the foregoing
shall not apply to information which is of public record or is generally known,
disclosed or available to the general public or the industry generally. Further,
the Executive agrees that he shall not, directly or indirectly, remove or
retain, without the express prior written consent of the Company, and upon the
Executive's termination of employment for any reason shall return to the
Company, any figures, calculations, letters, papers, records, computer disks,
computer print-outs, customer lists, price lists, other lists, contracts,
business plans, forms, manuals, other documents, instruments, drawings, designs,
programs, brochures, sales literature, or any copies or reproductions thereof,
or any information or instruments derived therefrom, or any other similar
information of any type or description, however such information might be
obtained or recorded, arising out of or in any way relating to the business of
the Company or obtained as a result of his employment by the Company. The
Executive acknowledges that all of the foregoing are proprietary information,
and are the exclusive property of the Company.
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18. ENFORCEMENT.
(a) Upon presentation of a claim or claims (collectively, "Claims") arising out
of or relating to this Agreement, or the breach hereof, by an aggrieved party,
the other party shall have thirty (30) days in which to make such inquiries of
the aggrieved party and conduct such investigations as it believes reasonably
necessary to determine the validity of the Claims. At the end of such period of
investigation, the complained of party shall either pay the amount of the Claims
or the arbitration proceeding described immediately below shall be invoked.
(b) In the event that the Claims are not settled by the procedure set forth
immediately above, the Claims shall be submitted to arbitration conducted in
accordance with the Commercial Arbitration Rules ("Rules") of the American
Arbitration Association ("AAA") except as amplified or otherwise varied hereby.
(c) The parties shall submit the dispute to the Chicago regional office of the
AAA and the situs of the arbitration shall be Xxxx County, Illinois.
(d) The arbitration shall be conducted by a single arbitrator. The parties shall
appoint the single arbitrator to arbitrate the dispute within ten (10) business
days of the submission of the dispute. In the absence of agreement as to the
identity of the single arbitrator to arbitrate the dispute within such time, the
AAA is authorized to appoint an arbitrator in accordance with the Rules, except
that the arbitrator shall have as his principal place of business the Chicago
metropolitan area.
(e) The single arbitrator selected by the AAA shall be an attorney, accountant
or other professional licensed to practice by the State of Illinois.
(f) Notwithstanding anything in the Rules to the contrary, the arbitration award
shall be made in accordance with the following procedure. Each party shall, at
the commencement of the arbitration hearing, submit an initial statement of the
amount each party proposes be selected by the arbitrator as the arbitration
award ("Settlement Amount"). During the course of the arbitration, each party
may vary its proposed Settlement Amount. At the end of the arbitration hearing,
each party shall submit to the arbitrator its final Settlement Amount ("Final
Settlement Amount"), and the arbitrator shall be required to select either one
or the other Final Settlement Amounts as the arbitration award without
discretion to select any other amount as the award. The arbitration award shall
be paid within ten (10) business days after the award has been made, together
with interest from the date of award has been made, together with interest from
the date of award at the rate of six percent (6%). Judgment upon the award may
be entered in any federal or state court having jurisdiction over the parties
and shall be final and binding.
19. COSTS OF ENFORCEMENT. The Company shall reimburse the Executive for
reasonable attorneys' fees and costs incurred by the Executive in connection
with any claim by the
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Executive brought hereunder (including but not limited to all reasonable
attorneys' fees and costs incurred by the Executive in contesting or disputing
any termination of the Executive's employment, or in seeking obtain or enforce
any right or benefit provided by this Agreement, or in connection with any tax
audit or proceeding to the extent attributable to any payment or benefit
provided hereunder), so long as such claim is brought in good faith.
20. NO DUTY TO MITIGATE OR OFFSET. The Executive shall not be required to
mitigate or offset the amount of any payments that the Executive may receive
from the Company as a result of the Executive's termination of employment. The
amounts payable hereunder by the Company as a result of the Executive's
termination of employment shall be considered liquidated damages and shall not
be reduced by any amounts that the Executive earns through other employment or
otherwise, except that the Company's obligation to continue medical, dental and
life insurance benefits pursuant to Section 15 herein shall be reduced by the
amount of any such benefits provided to the Executive by any other employer.
21. INDEMNIFICATION. The Company hereby agrees to indemnify the Executive
against all liabilities, costs, charges and expenses whatsoever incurred or
sustained by the Executive in connection with any threatened, pending or
completed action, suit or proceeding to which the Executive may be made a party
or may be threatened to be made a party by reason of the Executive's being or
having been a director, officer, employee, or agent of the Company or serving or
having served at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise to the fullest extent permitted by applicable law. The Company shall
advance all costs, charges and expenses, including legal fees, incurred by the
Executive in connection with the Executive's defense of any claim for which the
foregoing indemnity may apply. If it is subsequently determined that the
Executive was not entitled to such indemnification, the Executive will reimburse
the Company any amounts advanced pursuant to the foregoing sentence.
22. DIRECTORS AND OFFICERS INSURANCE. The Executive shall be entitled to the
protection of any insurance policies the Company or any of its affiliates from
time to time maintains for the benefit of its senior executive officers and
directors (or substantially similar policies) respecting liabilities, costs,
charges, and expenses of any type whatsoever incurred or sustained by the
Executive in connection with any action, suit or proceeding to which the
Executive may be made a party or may be threatened to be made a party by reason
of the Executive's being or having been a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise.
23. GENERAL PROVISIONS.
(a) GOODWILL. The Company has invested substantial time and money in the
development of products, services, territories, advertising and marketing
thereof, soliciting clients and creating goodwill. By accepting employment with
the Company, the Executive acknowledges
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that the customers are the customers of the Company, and that any goodwill
created by the Executive belongs to and shall inure to the benefit of the
Company.
(b) NOTICE. Any notice or demand required or permitted hereunder shall be made
in writing (i) either by actual delivery of the notice or demand into the hands
of the party thereunder entitled, or (ii) by the mailing of the notice or demand
in the United States mail, certified or registered mail, return receipt
requested, all postage prepaid and addressed to the party to whom the notice or
demand is to be given at the party's respective address set forth below, or such
other address as the parties may from time to time designate by written notice
as herein provided.
As addressed to the Company:
Metal Management, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Operating Officer
As addressed to the Executive:
Xx. Xxxxxxx X. Xxxxx
00 Xxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
The notice or demand shall be deemed to be received in case (1) on the date of
its actual receipt by its actual receipt by the party entitled thereto and in
case (2) on the date of its mailing.
(c) AMENDMENT AND WAIVER. No amendment or modification of this Agreement shall
be valid or binding upon the Company unless made in writing and signed by an
officer of the Company duly authorized by the Board or upon the Executive unless
made in writing and signed by him. The waiver by either party hereto of the
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by such party.
(d) ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between
the parties with respect to the Executive's duties and compensation as an
executive of the Company and shall supersede any and all prior agreements or
understandings between the parties hereto; there are no representations,
warranties, agreements or commitments between the parties hereto with respect to
his employment except as set forth herein.
(e) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Illinois.
13
(f) SEVERABILITY. If any provision of this Agreement shall, for any reason, be
held unenforceable by a court of competent jurisdiction, such provision shall be
severed from this Agreement unless, as a result of such severance, the Agreement
fails to reflect the basic intent of the parties. If the Agreement continues to
reflect the basic intent of the parties, then the invalidity of such specific
provision shall not affect the enforceability of any other provision herein, and
the remaining provisions shall remain in full force and effect.
(g) ASSIGNMENT. The Executive may not under any circumstances delegate any of
his rights and obligations hereunder without first obtaining the prior written
consent of the Company. The Company shall cause this Agreement and all of the
Company's rights and obligations hereunder, including without limitation the
obligations of the Company in the event of a termination (or deemed termination)
by the Company of the Executive's employment pursuant to Section 13(a), to be
assigned and expressly assumed by any successor to all or substantially all of
the business and/or assets of the Company, whether direct or indirect, by
purchase, merger, consolidation or otherwise, including upon a Change in Control
(as defined in Section 13(e)); provided, however, that any such assignment shall
not relieve the Company of its obligations hereunder to the extent that an
assignee does not fulfill such obligations.
(h) HEIRS. This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amount would still be payable to him hereunder if he had continued
to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee, legatee
or other designees or, if there is no such designee, to the Executive's estate.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
METAL MANAGEMENT, INC.
By /s/ Xxxxxx X. Xxxxx
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Its Chief Executive Officer
By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Its Executive Vice-President
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
