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EXHIBIT 10.16
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 23rd
day of March, 1998, by and between XXXXX X. XXXXXXXXX (the "Executive") and
METAL MANAGEMENT, INC., a Delaware corporation (the "Company").
WHEREAS, the Company desires to employ the Executive and the Executive
desires to accept 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
Vice President, General Counsel and Secretary 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 17
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 five (5) years thereafter (the "Employment Period"); provided,
however, that as of the third 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 third 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 third 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 Executive's employment shall
terminate upon the earliest to occur of the events described in Section 14
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
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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 14.
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 Two Hundred and Twenty-Five Thousand
Dollars ($225,000.00) per Contract Year, 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. The Executive shall also be paid
the amount of Thirty-Five Thousand Dollars ($35,000) upon the Commencement Date,
the receipt of which the Executive hereby acknowledges.
5. INCENTIVE COMPENSATION. In addition to the Executive's Salary, the
Company shall pay to the Executive, during the Employment Period, additional
compensation ("Incentive Compensation") calculated as follows:
(a) STOCK OPTION. The Executive shall be awarded a stock option to
purchase eighty thousand (80,000) shares of common stock of the Company, par
value $.01 per share ("Common Stock"), under the terms of the Metal Management,
Inc. 1995 Stock Plan (the "Stock Plan"). The stock option will have exercise
prices of (i) Twelve and Five Eighths Dollars ($12- 5/8) per share for fifty
thousand (50,000) of the shares subject to the option ("Group 1"), (ii)
Seventeen Dollars ($17.00) per share for fifteen thousand (15,000) of the shares
subject to the option ("Group 2"), and (iii) Eighteen Dollars ($18.00) per
share for the remaining fifteen thousand (15,000) shares subject to the option
("Group 3"). The Group 1 portion of the stock option will vest in four equal
installments on September 23, 1998, March 23, 1999, September 23, 1999 and March
23, 2000; the Group 2 portion of the stock option will vest on March 23, 2001;
and the Group 3 portion of the stock option will vest on March 23, 2002. To the
extent permissible under law and the terms of the Stock Plan, the stock option
granted hereunder will constitute an incentive stock option (within the meaning
of section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), an
"ISO"). The Executive shall be required to enter into an option agreement
evidencing the grant of the stock option and the material terms and conditions
relating thereto, including, but not limited to, that the option will be
exercisable after Executive's termination of employment for a period of not less
than ninety (90) days.
(b) OTHER STOCK TERMS. The Executive acknowledges that the Common
Stock is publicly traded and is subject to various federal and state securities
laws and that the shares acquired upon the exercise of the option (collectively
the "Shares") are being issued pursuant to such laws and agrees that he will
comply with any and all applicable laws and regulations governing the Shares.
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(c) STOCK-BASED PLANS. The Executive shall be eligible to
participate in and receive awards under any other stock-based plans of the
Company pursuant to Section 12 below.
6. CASH BONUS COMPENSATION. The Executive shall be entitled to an
annual bonus ("Annual Cash Bonus") as determined in the discretion of the
Executive Committee (the "Executive Committee") of the Board of Directors of the
Company (the "Board"). Any subsequent reference to the term "Annual Cash Bonus"
in this Agreement shall be deemed to refer to the annual cash bonus paid (or
agreed to be paid) to the Executive with respect to the most recently completed
fiscal year; provided, however, that the term Annual Cash Bonus shall be deemed
to be equal to Fifty Six Thousand Two Hundred and Fifty Dollars ($56,250) for
purposes of this Agreement until such time as the Company shall have paid an
annual cash bonus to the Executive in accordance with Section 6 hereof.
7. 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.
8. 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.
9. 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 (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 disability benefits
then generally available to other senior executives of the 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
Annual Cash Bonus paid to the Executive pursuant to Section 6 of this Agreement
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
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Section 9 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.
10. 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 Annual 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 Bonus paid to the Executive for
the calendar year immediately preceding his death. The benefits payable under
this Section 10 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.
11. 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.
12. OTHER COMPENSATION, BENEFITS AND PERQUISITES. The Executive's
Salary shall be as described in Section 4 above; his stock Incentive
Compensation shall be as described in Section 5 above; his Annual Cash Bonus
shall be as described in Section 6 above; his vacation shall be as described in
Section 7 above; and his sick leave, disability benefit, death benefit and
insurance shall be as described in Sections 8, 9, 10 and 11 above, respectively.
In addition to the aforesaid types of compensation, benefits and perquisites,
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
in addition to the Annual Cash Bonus; stock option plans; 401(k) plans; welfare
plans; business travel policies; car allowance; medical insurance; dental
insurance; dues, fees and costs (including travel) 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 Executive Committee.
Without limiting the generality of the foregoing, it is expressly agreed that:
the Executive's car allowance from the Company shall never be less than Six
Hundred Dollars ($600) per month, provided that any portion of such car
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allowance that is not being used to pay for the Executive's car shall be paid by
the Company to the Executive as additional compensation in regard to such month
and 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.
13. 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.
14. 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 Executive Committee. 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 14(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, 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;
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(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 14(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.
(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 9
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
9 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 14(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 25 miles from the downtown business
district of Chicago, Illinois, (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 following the date of a Change in Control
(as defined below), or (iv) 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 following the date the Executive receives notice of
non-renewal of the Employment Period from the Company pursuant to Section 3
herein. For purposes of this Agreement, a "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
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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 Executive Committee:
(1) any "person" (as defined in sections 13(d) and
14(d) of the Exchange Act), other than Xxxxxx X. Xxxxx, Xxxxx
X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxx and T. Xxxxxxxx
Xxxxxxxx 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 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.
15. 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
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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.
16. 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 14(a):
(i) the Company shall pay the Executive any accrued but unpaid
Salary, prorated Annual Cash Bonus, prorated vacation, 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 (determined as though the Annual Cash
Bonus would be paid for each year in the Balance of the Term) for
the Balance of the Term (but in no event less than three years if
the Employment Agreement is terminated prior to the third
anniversary of the Commencement Date), or (2) the product of 3.00
multiplied by the Executive's highest total 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;
(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 Code, and such continuation
converge shall commence on the date that benefits provided
hereunder cease);
(iv) the ownership of all options granted to the Executive by
the Company under this Agreement shall be immediately and fully
vested in the Executive and shall remain outstanding and
exercisable until the expiration date of such options, determined
without regard to any early termination of such options resulting
from the Executive's termination of employment and without regard
to any post-termination restrictions on exercise of such options
imposed because the options were originally granted as ISOs; and
(v) to the extent application of the provisions of paragraph
(iv) next above causes any options which were originally granted as
ISOs to fail to satisfy
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the requirements of section 422 of the Code, such options shall
thereafter be considered for all purposes as nonqualified stock
options.
Other than as provided herein, if the Executive's employment is terminated by
the Company pursuant to Section 14(b) hereof, the Company shall pay to the
Executive any accrued but unpaid Salary, prorated Annual Cash Bonus, prorated
vacation, and any other amounts accrued but unpaid as of the date of
termination. Any benefit payable pursuant to this Section 16 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.
17. 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 sixty (60) 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 (as defined below); 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 17;
(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
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(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 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 17 are reasonable in scope and duration
and are necessary to protect the Company after the Commencement Date. If any
provision of this Section 17 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 17 will cause irreparable damage to the Company and upon
breach of any provision of this Section 17, 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).
18. 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
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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.
19. 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
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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.
20. 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 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.
21. 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 16 herein shall be reduced by the
amount of any such benefits provided to the Executive by any other employer.
22. 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.
23. 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.
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24. 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 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. Xxxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, 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
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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.
(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 14(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 14(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.
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
President and Chief Operating Officer
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx
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