EMPLOYMENT AGREEMENT
(TISSINGTON)
AGREEMENT made this 15th day of May, 2000, effective April 1,
2000, between MAGNESIUM CORPORATION OF AMERICA, a Delaware corporation (the
"Company"), with its principal office at 000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx,
Xxxx 00000 and XXXXXXX X. XXXXXXXXXX residing at 0000 X. Xxxxxxxxxxx Xxxx, Xxxx
Xxxx, Xxxx 00000 ("Employee").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained, it
is hereby agreed as follows:
1. TERM AND DUTIES.
Commencing as of April 1, 2000 and continuing until October
31, 2001, unless sooner terminated or extended as herein provided (the
"Employment Term"), the Company shall employ the Employee as its Vice President
- Sales and Marketing. During the Employment Term the Employee shall continue to
devote all of his business time and his best efforts to the business of the
Company, and its subsidiaries, as may be necessary to perform his duties
hereunder, in accordance with the policies, procedures, business plans and
budgets from time to time established by the Board of Directors, and the
Chairman of the Board and the President and shall not have any other business
affiliations. Employee hereby accepts continued employment hereunder.
2. COMPENSATION.
In full compensation for the services to be rendered by the
Employee to the Company and its subsidiaries hereunder, during the Employment
Term, the Company will pay to the Employee, and the Employee shall accept:
(a) a basic annual salary of One Hundred Ten Thousand
($110,000) Dollars for each employment year of the Employment Term payable in
installments not less frequently than monthly, and increased as the Board of
Directors may, from time to time, determine in its discretion; plus
(b) for each fiscal year (November 1 to October 31)
of the Company ending during the employment of the Employee, a year end bonus of
$25,000, provided that the Employee is in the employ of the Company at the close
of such year and the Company shall not have incurred a net loss for such fiscal
year determined in accordance with generally accepted accounting principles
followed by the Company in preparing its audited balance sheet as of the date of
this Agreement but before giving effect to this clause (b), and to like
provisions in any other employment agreement to which the Company is a party.
The bonus for each fiscal year shall, if due, be paid as promptly as practicable
after the independent accountants for the Company shall have determined, and
reported in writing, as to whether the Company had a net loss within the meaning
of this clause (b) for such year; plus
(c) such additional amounts, if any, as the Board of
Directors of the Company may determine from time to time in its discretion.
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3. PLACE OF EMPLOYMENT.
The Employee's regular place of employment during the
Employment Term shall be at the principal executive office of the Company in
Salt Lake City, Utah. The Employee may not be required to relocate without his
consent.
4. TRAVEL; EXPENSES.
The Employee shall engage in such travel as may reasonably be
required in connection with the performance of his duties, in accordance with
prior practice. Employee recognizes that the position Vice President - Sales and
Marketing requires substantial travel.
All reasonable travel and other expenses incurred by the
Employee (in accordance with the policies of the Company established from time
to time) in carrying out his duties hereunder will be reimbursed by the Company
on presentation to it of expense accounts and appropriate documentation in
accordance with the customary procedures of the Company for reimbursement of
executive expenses. The Employee shall be entitled to a travel expense advance
in the discretion of the Company when anticipated travel warrants such advance.
5. EARLY TERMINATION OF EMPLOYMENT TERM ON DISABILITY OR
DEATH.
(a) If during the Employment Term, the Employee fails
because of illness or other incapacity (including incapacity because of
substance abuse) to render to the Company the services required of him hereunder
for a period of two months (during which the Company shall continue the
Employee's compensation at the rates herein provided), the Company may, in its
discretion, give one month notice of termination of the Employment Term (during
which the Employee's compensation shall likewise be continued), and if the
Employee shall not resume full performance of his duties within such one month
period, the Employment
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Term shall terminate at the expiration thereof, provided that any such
termination shall not affect the right of the Employee (or his estate) to
continue to receive benefits under any disability insurance plan covering the
Employee which is in effect at the date of termination, and further provided
that if any such termination shall be during a fiscal year and the Company shall
not have a net loss determined as provided in paragraph 2(b) for such fiscal
year, the Employee shall be entitled to a pro-rata portion of the bonus for such
year based on the number of full months worked by him in such year.
(b) The Employment Term shall end upon the death of
the Employee, provided that if the Employee shall die during a fiscal year, and
the Company shall not have a net loss, determined as provided in paragraph 2(b),
for such fiscal year, the Employee shall be entitled to a pro-rata portion of
the bonus for such year, based on the number of full months worked by him during
such year.
6. VACATION.
During the Employment Term, the Employee shall be entitled to
vacation periods not exceeding four weeks in each year, to be taken at such time
or times as shall be mutually convenient to the Company and the Employee (but
not more than two weeks consecutively). Unused vacation shall not accumulate
from year to year.
7. CONFIDENTIALITY; COMPETITION.
(a) For the purposes hereof, all confidential
information about the business and affairs of the Company (including, without
limitation, business plans, financial and marketing information and information
about its secrets and machinery, designs, plans, patterns and specifications,
formulae, processes, inventions and discoveries, and names of suppliers and
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customers and nature of dealings with them, sales data and marketing plans)
constitute "Company Confidential Information." Since August 10, 1998, the
Employee has been an employee of the Company in a senior marketing position. He
acknowledges that he has in the past had, and will continue to have, access to
and knowledge of Company Confidential Information, and that improper use or
revelation of same by the Employee during or after the termination of his
employment by the Company could cause serious injury to the business of the
Company. Accordingly, the Employee agrees that he will forever keep secret and
inviolate all Company Confidential Information which shall have come or shall
hereafter come into his possession, and that he will not use the same for his
own private benefit, or directly or indirectly for the benefit of others, and
that he will not disclose such Company Confidential Information to any other
person other than in pursuance of Company business.
(b) During the Employment Term and for a period of
two years thereafter, the Employee will not (whether as an officer, director,
partner, proprietor, investor, associate, employee, consultant, adviser, public
relations or advertising representative or otherwise), directly or indirectly,
be engaged in any aspect of the business of producing and marketing pure
magnesium and/or magnesium alloy within the entire world (which the parties
acknowledge is the Company's trading area). For purposes of the preceding
sentence, the Employee shall be deemed to be engaged in any business which any
person for whom he shall perform services is engaged. Nothing herein contained
shall be deemed to prohibit the Employee from owning, as a passive investment, a
security of any issuer which is not a supplier, vendor; customer or competitor
of the Company and whose securities are publicly traded.
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Notwithstanding the foregoing,
(i) If the Company terminates this
Agreement or declines to extend
this Agreement at the end of the
Employment Term, other than for
cause, the non-competition period
shall be one year, rather than two
years;
(ii) If the assets of the Company are
sold substantially as an entirety,
or its stock is sold, in either
case, to a purchaser not affiliated
with The Renco Group, Inc. and if
Employee is not offered employment
by the new owner for reasons, other
than for cause, the non-competition
period shall be one year, rather
than two years; and
(iii) If the stock or assets of the
Company are sold substantially as
an entirety to an entity controlled
by Dow Chemical Company or by
Timminco, there shall be no
non-competition period.
(c) Within the terms of this Agreement, it is
intended to limit disclosure and competition by the Employee to the maximum
extent permitted by law. If it shall be finally determined by any court of
competent jurisdiction ruling on this Agreement that the scope or duration of
any limitation contained in this paragraph 7 is too extensive to be legally
enforceable, then the parties hereby agree that the scope and duration (not
greater than that provided for herein) of such limitation shall be the maximum
scope and duration which shall be legally enforceable and the Employee hereby
consents to the enforcement of such limitation as so modified.
(d) The Employee acknowledges that any violation by
him of the provisions of this paragraph 7 could cause serious and irreparable
damages to the Company. He further acknowledges that it might not be possible to
measure such-damages in money. Accordingly, the Employee further acknowledges
that, in the event of a breach or threatened breach by him of the provisions of
this paragraph 7, the Company may seek, in addition to any
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other rights or remedies, including money damages, an injunction or restraining
order, restraining the Employee from doing or continuing to do or perform any
acts constituting such breach or threatened breach.
8. EMPLOYEE'S INVENTIONS.
The Employee agrees to assign and transfer to the Company, its
successors and assigns, his entire right, title and interest in and to any or
all inventions, designs, discoveries and improvements which he may make, either
solely or jointly with others, during the Employment Term hereunder and for a
period of one (1) year thereafter, which relate in any way to the business or
products of the Company, together with all rights to letters patent which may be
granted thereon. Immediately upon making any inventions, designs, discoveries or
improvements, the Employee shall notify the Company and, without further
compensation, shall execute and deliver to the Company such documents as may be
necessary to prepare or prosecute applications for patents upon such inventions,
designs, discoveries and improvements, and shall assign and transfer to the
Company his entire right, title and interest therein. The Company shall pay all
expenses involved in carrying out the provisions of this paragraph 8.
9. BENEFITS.
The Company agrees to continue to provide to the Employee
during the Employment Term the same medical, hospitalization, disability
insurance benefits and all other benefits as were provided to him immediately
prior to the execution of this Agreement.
10. EMPLOYEE'S REPRESENTATION.
Employee hereby represents to the Company that he has full
right and power to enter into this Agreement and carry out his duties hereunder,
and that same will not constitute a
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breach of or default under any employment, confidentiality, non-competition or
other agreement by which he may be bound.
11. DEFAULT BY EMPLOYEE.
If the Employee shall:
(i) commit an act of dishonesty against the
Company or fraud upon the Company; or
(ii) breach his obligations under this Agreement
and fail to cure such breach within five (5)
days after written notice thereof; or
(iii) be convicted of a crime involving moral
turpitude; or
(iv) fail or neglect diligently to perform his
duties hereunder and continue in his failure
after written notice;
then, and in any such case, the Company may terminate the employment of the
Employee hereunder and, in the event of any such termination, the Employee shall
no longer have any right to any and all benefits (including future salary
payments) which would otherwise have accrued after such termination.
12. AUTOMATIC RENEWAL.
This Agreement shall automatically renew and be extended from
year to year upon the expiration of the Employment Term (as extended if
extended) unless terminated by either party by written notice given to the other
at least six months prior to October 31 2001, or prior to any subsequent October
31. If any such notice shall be given, this Agreement shall terminate on October
31, 2001, or the next succeeding October 31, as the case may be.
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13. SUCCESSORS.
The rights, benefits, duties and obligations under this
Agreement shall inure to and be binding upon the Company, its successors and
assigns and upon the Employee and his legal representatives, legatees and heirs.
It is specifically understood, however, that this Agreement may not be
transferred or assigned by the Employee. The Company may assign any of its
rights and obligations hereunder to any subsidiary or affiliate of the Company,
or, by written instrument to a successor or surviving corporation resulting from
a merger, consolidation, sale of assets or stock, or other corporate
reorganization, on condition that the assignee shall assume all of the Company's
obligations hereunder (but nevertheless the Company shall remain liable
hereunder) and it is agreed that such successor or surviving corporation shall
continue to be obligated to perform the provisions of this Agreement.
14. NOTICES.
Notices hereunder shall be in writing and shall be sent by
telegraph or by certified or registered mail, telecopy, or recognized overnight
delivery service (such as Federal Express) prepaid as follows:
TO EMPLOYEES: TO COMPANY:
Xxxxxxx X. Xxxxxxxxxx Magnesium Corporation of America
0000 X. Xxxxxxxxxxx Xxxx c/o The Renco Group, Inc.
Xxxx Xxxx Xxxx 00000 00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxx Xxxxxxx
Chairman
with copies to:
Magnesium Corporations of America
000 Xxxxx 0000 Xxxx
Xxxx Xxxx Xxxx Xxxx 00000
Attention: President
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and shall be deemed to have been given when telecopied to the addressee (not
later than 12 noon on a business day) or three days after placed in the U.S.
mail or the second business day following delivery to a recognized overnight
delivery service (such as Federal Express) or a telegraph company, prepaid and
properly addressed. Notices to the Employee may also be delivered to him
personally. Notices of change of address shall be given as provided above, but
shall be effective only when actually received.
15. WAIVERS.
The failure of either party to insist upon the strict
performance of any of the terms, conditions, and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
therewith, and said terms, conditions, and provisions shall remain in full force
and effect. No waiver of any term or condition of this Agreement on the part of
the Company, shall be effective for any purposes whatsoever unless such waiver
is in writing and signed by the Company.
16. ENTIRE AGREEMENT; GOVERNING LAW.
There are no oral or written understandings concerning the
Employee's employment outside of this Agreement and a separate Net Worth
Appreciation Agreement between the Company and .the Employee. This Agreement may
not be modified except by a writing signed by the parties hereto. Effective as
of April 1, 2000, this Agreement supersedes any and all prior employment
agreements or understandings. This Agreement is made under, and shall be
construed in accordance with, the laws of Utah, applicable to agreements to be
performed wholly within that state.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the day and year first above written.
MAGNESIUM CORPORATION OF AMERICA
Attest:
By: /s/ Xxxxxxx Xxxxx
------------------------------- -------------------------------
Witness:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxxxx
NOTARY PUBLIC
NLYA J. RALEIGH
[SEAL] 0000 XXXX 0000 XXXXX
XXXXXXXXXXXX, XX 00000
MY COMMISSION EXPIRES
MARCH 15TH, 2004
STATE OF UTAH
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