1
EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Agreement dated as of January 1, 1997 (the "Effective Date") is made by
and among Trojan Trading Co., Firma Plastic Co., Inc., Firma, Inc., California
Metals Recycling, Inc. and XxxXxxx Metals Co., each California corporations
(the "Companies" or individually, a "Company"), and Xxx XxxXxxx ("Employee").
1. DUTIES AND SCOPE OF EMPLOYMENT.
a) EMPLOYMENT AND DUTIES. Beginning on the
Effective Date, the Companies agree to employ the Employee,
and Employee agrees to be employed, as President and Chief
Executive Officer of each of the Companies. Employee shall
assume and discharge such duties as are mutually agreed upon
by the Companies and Employee and as are commensurate with
such position, except that Employee shall not have the
ability to terminate the Controller of the Companies, which
power shall be vested solely in the Board of Directors of
the Company. During the term of the Employee's employment
with the Companies, the Employee shall devote his full time,
skill and attention to his duties and responsibilities,
which the Employee shall perform faithfully, diligently and
competently, and the Employee shall use his best efforts to
further the business of the Companies and their affiliated
entities.
b) TERM OF EMPLOYMENT. Employee's employment
with the Companies pursuant to this Agreement shall commence
on the Effective Date and shall continue until the repayment
or termination of the Class A Note (as defined in the
Acquisition Agreement dated January 1, 1997 among Metal
Management, Inc., MMI Acquisition, Inc., Metal Management
Realty, Inc., California Metals Recycling, Inc., Firma,
Inc., XxxXxxx Metals Co., Firma Plastic Co., Inc., Trojan
Trading Co., Xxx XxxXxxx, Xxxxxxx XxxXxxx and the XxxXxxx
Family Trust dated January 30, 1993) (the "Term"), unless
terminated earlier as provided herein.
2. BASE COMPENSATION. The Companies (collectively) shall
pay the Employee as compensation for his services hereunder a base
salary at the annualized rate of $60,000 (the "Base Salary"). Such
salary shall be paid periodically in accordance with normal payroll
practices of the Companies.
3. EMPLOYEE BENEFITS. The Employee shall be eligible to
participate in the employee benefit plans and executive compensation
programs maintained by the Companies applicable to other key
executives of the Companies, including (without limitation) retirement
plans, savings or profit sharing plans, stock option, incentive or
other bonus plans, life, disability, health, accident and other
insurance programs, paid vacations, and similar plans or programs,
subject, in each case, to the generally applicable terms and
conditions of the applicable plan or program in question and to the
determination of any committee administering such plan or program.
2
4. EXPENSES. The Companies shall pay or reimburse
Employee for reasonable travel, entertainment or other expenses
incurred by Employee in the furtherance of or in connection with the
performance of Employee's duties hereunder in accordance with
established policies of the Companies. Employee shall furnish the
Companies with evidence of the incurrence of such expenses within a
reasonable period of time from the date that they were incurred.
5. TERMINATION.
a) TERMINATION BY THE COMPANIES. If
Employee is terminated for Cause (as defined below), then
Employee shall not be entitled to receive severance or other
benefits, except for those, if any, as may then be
established and applicable under the Companies' severance
and benefits plans and policies existing at the time of such
termination. The Companies shall not terminate Employee's
employment with them during the term other than for Cause.
After the Term, Employee's employment with the Companies
shall be at will.
b) TERMINATION BY EMPLOYEE. If Employee
voluntarily terminates his employment with any of the
Companies, then Employee shall not be entitled to receive
severance or other benefits.
c) DEFINITION OF CAUSE. For purposes of
this Agreement, the term "Cause" is defined as any one or
more of the following occurrences:
i) Employee's conviction by, or entry of a plea of
guilty or nolo contendere in, a court of competent
and final jurisdiction for any crime which
constitutes a felony in the jurisdiction involved;
or
ii) Employee's commission of an act of fraud or
misappropriation of funds upon any of the
Companies; or
iii) Employee's breach of a material provision of this
Agreement or any other agreement with any of the
Companies; or
iv) Gross negligence by Employee in the scope of his
services to any of the Companies; or
v) Employee's commencement of employment with another
employer while he is an Employee of any of the
Companies; or
vi) Material nonconformance with any of the Companies
standard business practices and policies generally
known by employees of the Companies, made known to
Employee or delivered in writing to Employee.
3
d) Notwithstanding the foregoing, Employee shall not be deemed
to have been terminated for Cause without (i) reasonable
notice to Employee setting forth the reasons for such
Company's intention to terminate for Cause, and (ii) an
opportunity for Employee, together with his counsel, if any,
to be heard before the Board of Directors of such Company.
6. ARBITRATION; CONSENT TO PERSONAL JURISDICTION.
a) Employee agrees that any dispute or controversy
arising out of, relating to, or in connection with this
Agreement, or the interpretation, validity, construction,
performance, breach, or termination thereof, shall be
finally settled by binding arbitration to be held in San
Francisco County, California under the Commercial
Arbitration Rules, of the American Arbitration Association
as then in effect (the "Rules"). The arbitrator may grant
injunctions or other relief in such dispute or controversy.
The decision of the arbitrator shall be final, conclusive
and binding on the parties to the arbitration. Judgment
may be entered on the arbitrator's decision in any court
having jurisdiction.
b) The arbitrator(s) shall apply California law to the
merits of any dispute or claim, without reference to rules
of conflicts of law. The arbitration proceedings shall be
governed by federal arbitration law and by the Rules,
without reference to state arbitration law.
c) The Companies, on the one hand, and the Employee, on
the other hand, shall each pay one-half of the costs and
expenses of such arbitration and each shall separately pay
its counsel fees and expenses.
d) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION 6, WHICH
DISCUSSES ARBITRATION. EMPLOYEE UNDERSTANDS THAT BY SIGNING
THIS AGREEMENT, EMPLOYEE AGREES TO SUBMIT ANY CLAIMS ARISING
OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT,
OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, AND
THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF
EMPLOYEE'S RIGHT TO A JURY TRIAL AND RELATES TO THE
RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED
TO, THE FOLLOWING CLAIMS:
i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF
EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND
IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND
FAIR DEALING, BOTH EXPRESS AND
4
IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL
MISREPRESENTATION; NEGLIGENT OR INTENTIONAL
INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC
ADVANTAGE; AND DEFAMATION.
ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY
FEDERAL STATE OR MUNICIPAL STATUTE, INCLUDING, BUT
NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT
OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE
AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR
LABOR STANDARDS ACT, THE CALIFORNIA FAIR
EMPLOYMENT AND HOUSING ACT, AND LABOR CODE
SECTION 201, et eq;
iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER
LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR
EMPLOYMENT DISCRIMINATION.
7. GENERAL PROVISIONS.
a) ENTIRE AGREEMENT. This Agreement represents the
entire agreement and understanding between the parties as
to the subject matter hereof, and supersede all prior or
contemporaneous agreements, whether written or oral. No
waiver, alteration, or modification, if any, of the
provisions of this Agreement shall be binding unless in
writing and signed by duly authorized representatives of the
parties hereto.
b) SEVERABILITY. If one or more of the provisions in this
Agreement are deemed void by law, then the remaining
provisions will continue in full force and effect.
c) SUCCESSORS.
i) COMPANY'S SUCCESSORS. Any successor(s)
to any of the Companies (whether direct or indirect and
whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of any
such Company's business and/or assets shall assume the
obligations under this Agreement and agree expressly to
perform the obligations under this Agreement in the same
manner and to the same extent as such Company would be
required to perform such obligations in the absence of a
succession. For all purposes under this Agreement, the term
"Company" shall include any successor to any Company's
business and/or assets which executes and delivers the
assumption agreement described in this subsection (a) or
which becomes bound by the terms of this Agreement by
operation of law.
5
ii) EMPLOYEE'S SUCCESSORS. The
terms of this Agreement and all rights of the
Employee hereunder shall inure to the benefit of,
and be enforceable by, the Employee's personal or
legal representatives, executors, administrators,
successors, heirs, distributees, devisees and
legatees.
d) CONFLICTING OBLIGATIONS. Employee represents
that he has not entered into, and will not enter into, any
oral or written agreement in conflict herewith.
e) COUNTERPARTS. This Agreement may be executed
by either of the parties hereto in counterparts, each of
which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same
instrument.
f) GOVERNING LAW; CONSENT TO PERSONAL
JURISDICTION. This Agreement shall be governed by and
construed in accordance with the internal substantive laws,
and not the choice of law rules, of the State of California.
Employee hereby consents to the personal jurisdiction of the
state and federal courts located in California for any
action or proceeding arising from or relating to this
Agreement or relating to any arbitration in which the
parties are participants.
6
g) NOTICE. Any notice or communication required or
permitted under this Agreement shall be made in writing and
delivered personally to the other party or sent by certified
or registered mail, return receipt requested and postage
prepaid.
h) IN WITNESS WHEREOF, this Employment agreement is entered
into the date first written above.
XXX XXXXXXX
TROJAN TRADING CO.
By:
Print Name
Title
FIRMA PLASTIC CO., INC.
By:
Print Name
Title
FIRMA, INC.
By:
Print Name
Title
7
CALIFORNIA METALS RECYCLING, INC.
By:
Print Name
Title
XXXXXXX METALS CO.
By:
Print Name
Title
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
