EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT, is entered into as of
this 15th day of September, 1999 by and between Integrated Technology USA, Inc.
(the "Company"), a Delaware corporation, c/o Madison Partners, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Xxxxxx Xxxx, c/o Empire Resources, Inc.,
Xxx Xxxxxx Xxxxx, Xxxx Xxx, Xxx Xxxxxx 00000 (the "Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be employed by the Company; and
WHEREAS, the Company and the Executive desire to set forth the terms
and conditions of such employment.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the adequacy and
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Term of Employment. The Company hereby agrees to employ the
Executive and the Executive hereby accepts employment, in accordance with the
terms and conditions set forth herein, for a term (the "Employment Term")
commencing on the date of the consummation of the merger of the Company and
Empire Resources, Inc. (the "Merger") and terminating, unless otherwise
terminated earlier in accordance with Section 5 hereof, on the third anniversary
of the Merger (the "Original Employment Term"), provided that the Employment
Term shall be automatically extended, subject to earlier termination as provided
in Section 5 hereof, for successive additional two (2) year periods (the
"Additional Terms"), unless, at least one hundred eighty (180) days prior to the
end of the Original Employment Term or the then Additional Term, the Company or
the Executive has notified the other in writing that the Employment Term shall
terminate at the end of the then current term.
2. Position and Responsibilities. During the Employment Term, the
Executive shall serve as the Chief Executive Officer of the Company and the
Executive shall report exclusively to the Board of Directors of the Company (the
"Board"). During the Employment Term, the Company shall recommend the Executive
for election as a director. The Executive shall, to the extent appointed or
elected, serve on the Board as a director and as a member of any committee of
the Board, in each case, without additional compensation. The Executive shall,
to the extent appointed or elected, serve as a director or as a member of any
committee of the board of any of the Company's subsidiaries or affiliates and as
an officer or employee (in a capacity commensurate with his position with the
Company) of any such subsidiaries or affiliates, in all cases, without
additional compensation and any compensation paid to the Executive in such
capacities shall be a credit with regard to the amounts due hereunder from the
Company. The Executive shall have all of the duties, authorities, powers and
responsibilities commensurate with
all of the duties, authorities, powers and responsibilities of a chief executive
officer. The Executive shall devote substantially all of his business time,
attention and energies to the performance of his duties hereunder, provided that
the foregoing shall not prevent the Executive from participating in charitable,
community or industry affairs, from managing his and his family's personal
investments and from serving on the boards of directors of not-for-profit
companies to the extent such activities do not interfere with the performance of
his duties hereunder.
3. Compensation and Benefits. The Company shall pay and provide the
Executive the following:
3.1 Base Salary. The Company shall pay the Executive a base
salary (the "Base Salary") at an annual rate of not less than Two Hundred Fifty
Thousand Dollars ($250,000) per year in accordance with the Company's normal
payroll practices for senior executives. Base Salary shall be subject to annual
review by the Board (or a duly authorized committee thereof) for increase (but
not decrease) following each anniversary of the date hereof, provided that on
such anniversary date, the Base Salary shall be increased by not less than an
amount necessary to adjust for any increase in the cost of living during the
immediately prior twelve (12) months based on the Consumer Price Index for Urban
Wage Earners and Clerical Workers (CPI-W) selected areas (NY-NJ-CT), all items
index published by the Bureau of Labor Statistics of the United States
Department of Labor. Once increased, Base Salary shall not be reduced and shall
thereafter, as increased, shall be the Base Salary hereunder.
3.2 Annual Bonus. The Company shall pay the Executive an
annual bonus for each fiscal year of the Company ending during the Employment
Term, commencing with the 1999 fiscal year, equal to five percent (5%) of the
amount by which the Company's Earnings Before Taxes (as defined below) for each
such fiscal year exceeds $4,000,000 (the "Annual Bonus Payments"); provided,
however, that if any fiscal year is less than twelve (12) months due to a change
in the fiscal year, then such $4,000,000 amount shall be proportionately
reduced. Each Annual Bonus Payment shall be paid in a single cash lump sum not
later than thirty (30) days after the audited financial statements for such
fiscal year are complete. "Earnings Before Taxes" shall mean, for each fiscal
year, the Company's earnings before income taxes determined without regard to
charges to earnings for extraordinary items and Annual Bonus Payments with
respect to the Executive or to the Chief Financial Officer (as long as its Chief
Financial Officer is Xxxxxx Xxxx). Earnings Before Taxes and the amount of each
Annual Bonus Payment shall be determined by the Company's independent certified
public accountants (the "Accountants"), or such other party as mutually agreed
by the parties hereto, in accordance with GAAP as consistently applied by the
Company (as specifically modified hereby). The Company shall provide the
Executive with a copy of the Accountants' final determination (together with
supporting quantitative data and the methods used to make such calculations) for
his review and comment at least five (5) business days prior to the payment of
each Annual Bonus Payment. The Accountants' determinations shall be final,
binding and conclusive on the parties hereto.
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3.3 Employee Benefits. The Executive shall, to the extent
eligible, be entitled to participate at a level commensurate with his position
in all employee benefit, fringe benefit, welfare, retirement, savings and
incentive plans and programs generally provided by the Company to its senior
executives from time to time.
3.4 Vacation. The Executive shall be entitled to paid vacation
in accordance with the standard written policies of the Company with regard to
vacations of senior executives, but in no event less than six (6) weeks per
calendar year (with proration for partial years).
4. Expenses. Upon submission of appropriate documentation, the Company
shall pay, or reimburse, the Executive for all ordinary and necessary business
expenses (including, but not limited to, travel and entertainment expenses)
which the Executive incurs in connection with the performance of his duties
hereunder.
5. Termination of Employment and the Employment Term. The Executive's
employment with the Company and the Employment Term shall terminate upon the
occurrence of the first of the following events:
5.1 Death. Automatically on the date of the Executive's death.
5.2 Disability. Upon thirty (30) days' written notice by the
Company to the Executive of a termination due to Disability, provided such
notice is delivered during the period of Disability. "Disability" shall mean the
inability of the Executive, due to injury, illness, disease or bodily or mental
infirmity, to engage in the performance of his material duties hereunder for a
period of more than one hundred eighty (180) days in any twelve (12) month
period.
5.3 For Cause. Immediately upon written notice by the Company
to the Executive of a termination for Cause, provided such notice is given
within ninety (90) days after the discovery by the Board of the Cause event and
has been approved by at least two-thirds of the directors then in office (other
than the Executive and Xxxxxx Xxxx) at a meeting at which the Executive and his
counsel had the right to appear and address after receiving at least five (5)
business days written notice of the meeting and reasonable detail of the facts
and circumstances claimed to provide a basis for such termination. "Cause" shall
mean: (i) an act or acts of willful and material misrepresentation, fraud or
willful dishonesty (other than good faith expense account disputes) by the
Executive which is intended to result in his substantial personal enrichment at
the expense of the Company; (ii) any willful misconduct by the Executive with
regard to the Company that has a material adverse impact on the Company; (iii)
any material, willful and knowing violation by the Executive of any fiduciary
duties owed by him to the Company which has a material adverse impact on the
Company; (iv) the Executive's conviction of, or pleading nolo contendere or
guilty to, a felony (other than (x) a traffic infraction or (y) vicarious
liability solely as a result of his position provided that the Executive did not
have actual knowledge of the actions or inactions creating the violation of the
law or the Executive relied in good faith on the advice of counsel with regard
to the legality of such action or inaction); or (v)
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\any other material breach by the Executive of this Agreement that is not cured
by the Executive within twenty (20) days after receipt by the Executive of a
written notice from the Company of such breach specifying the details thereof.
No action or inaction should be deemed willful if not demonstrably willful and
if taken or not taken by the Executive in good faith as not being adverse to the
best interests of the Company. Reference in this Section 5.3 to the Company
shall also include direct and indirect subsidiaries of the Company.
6. Non-Competition/Non-Solicitation.
6.1 Non-Competition. The Executive agrees that during the
Specified Period (as defined below), the Executive shall not, directly or
indirectly, be engaged as a principal in any other business, activity or conduct
which competes with the business of the Company (or be an employee, consultant,
director, principal, shareholder or adviser of, or otherwise be affiliated with,
any such business, activity or conduct), provided that competition shall not
include: (i) holding five percent (5%) or less of an interest in the equity or
debt of any publicly traded company, (ii) engaging in any activity with the
prior written approval of the Board, or (iii) being involved only in a
noncompeting portion of a business which is in competition with the business of
the Company (but only if such non-competing portion of the business is conducted
as a separate business unit, and the Executive has no direct or indirect
involvement with the operations of the competing business unit (with the burden
of so demonstrating being on the Executive) and the foregoing shall not affect
Executive's obligations of confidentiality). For purposes of this Section 6,
"Company" shall mean the Company and its subsidiaries and affiliates. The
"Specified Period" means the Executive's period of employment and the four (4)
year period thereafter, provided that in the event the Executive is terminated
without Cause or due to his Disability or the Executive voluntarily terminates
his employment following a breach by the Company of this Agreement, the
Specified Period will terminate two (2) years after the termination of his
employment.
6.2 Non-Solicitation. The Executive agrees that during the
Specified Period the Executive shall not, directly or indirectly, (i) solicit
any customer, client, supplier, or middleman of the Company or induce any
customer, client, supplier, or middleman of the Company to terminate, or
otherwise to cease, reduce, or diminish in any way its relationship with the
Company or (ii) solicit or induce, or attempt to solicit or induce, any
non-clerical employee(s), sales representative(s), agent(s), or consultant(s) of
the Company to terminate such person's employment, representation or other
association with the Company for the purpose of affiliating with any entity with
which the Executive is associated.
6.3 Confidentiality. The Executive specifically acknowledges
that any trade secrets or confidential business and technical information of the
Company or its vendors, suppliers or customers, whether reduced to writing,
maintained on any form of electronic media, or maintained in mind or memory and
whether compiled by the Executive or the Company (collectively, "Confidential
Information"), derives independent economic value from not being readily known
to or ascertainable by proper means by others; that reasonable efforts have been
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made by the Company to maintain the secrecy of such information; that such
information is the sole property of the Company or its vendors, suppliers, or
customers and that any retention, use or disclosure of such information by the
Executive during the Employment Term (except in the course of performing duties
and obligations of employment with the Company) or any time after termination
thereof, shall constitute misappropriation of the trade secrets of the Company
or its vendors, suppliers, or customers, provided that Confidential Information
shall not include: (i) information that is at the time of disclosure public
knowledge or generally known within the industry; (ii) information deemed in
good faith by the Executive, while employed by the Company, desirable to
disclose in the course of performing the Executive's duties; (iii) information
the disclosure of which the Executive in good xxxxx xxxxx necessary in defense
of the Executive's rights provided such disclosure by the Executive is limited
to only disclose as necessary for such purpose; or (iv) information disclosed by
the Executive to comply with a court, or other lawful compulsory, order
compelling him to do so, provided the Executive gives the Company prompt notice
of the receipt of such order and the disclosure by the Executive is limited to
only disclosure necessary for such purpose.
6.4 Return of Property. Upon the termination of the
Executive's employment or at any other time upon written request by the Company,
the Executive shall promptly deliver to the Company all records, files,
memoranda, designs, data, reports, drawings, plans, computer programs, software
and other documents (and all copies or reproductions of such materials in his
possession or control) belonging to the Company. Notwithstanding the foregoing,
the Executive may retain his rolodex and similar phone directories
(collectively, the "Rolodex") to the extent the Rolodex does not contain
information other than name, address, telephone number and similar information.
6.5 Scope of Restrictions/Remedies. If, at the time of
enforcement of this Section 6, a court holds that the restrictions stated herein
are unreasonable under circumstances then existing, the parties hereto agree
that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum period, scope and area permitted by law. In the event of a material
breach or threatened material breach of this Section 6, the Company, in addition
to its other remedies at law or in equity, shall be entitled to injunctive or
other equitable relief in order to enforce or prevent any violations of the
provisions of this Section 6. The Company agrees that it will not assert to
enjoin or otherwise limit the Executive's activities based on an argument of
inevitable disclosure of confidential information. Upon written request of the
Executive, the Company shall within thirty (30) days notify the Executive in
writing whether or not in good faith it believes that any proposed activities
would be in Competition and, if it so determines or does not reply within thirty
(30) days, it shall be deemed to waive any right to treat such activities as
Competition unless the facts are otherwise than as presented by the Executive or
there is a change thereafter in such activities.
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7. Indemnification/Liability Insurance. The Company shall concurrently
with the execution and delivery of this Agreement enter into an Indemnification
Agreement with the Executive (such agreement to be the same as the agreement
previously entered into by the Company with its other executives, a copy of
which is filed as an exhibit to the Company's Report on Form 10-KSB for the year
ended December 31, 1997). The Company shall cover the Executive under directors
and officers liability insurance both during and, while potential liabil ity
exists, after the Employment Term in the same amount and to the same extent, if
any, as the Company covers its other officers and directors.
8. Assignment. This Agreement may and shall be assigned or transferred
to, and shall be binding upon and shall inure to the benefit of, any Successor
of the Company, and any such Successor shall be deemed substituted for all
purposes of the "Company" under the terms of this Agreement. Successor shall
mean any person, firm, corporation or business entity which at any time, whether
by merger, purchase, or otherwise, acquires all or substantially all of the
assets of the Company. Notwithstanding such assignment, the Company shall
remain, with such successor, jointly and severally liable for all its
obligations hereunder. Except as herein provided, this Agreement may not
otherwise be assigned by the Company. This Agreement is not assignable by the
Executive. This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, and
administrators, successors, heirs, distributees, devisees, and legatees. If the
Executive should die after a termination while any amounts payable to the
Executive hereunder remain outstanding, all such amounts, unless otherwise
provided herein, shall be paid to the Executive's devisee, legatee, or other
designee or, in the absence of such designee, to the Executive's estate.
9. Legal Remedies.
9.1 Notices. All notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, or one (1) day
after sending by express mail or other "overnight mail service," or three (3)
days after sending by certified or registered mail, postage prepaid, return
receipt requested. Notice shall be sent as follows: if to the Executive, to the
address as listed in the Company's records, and if to the Company, to the
address set forth on the first page of this Agreement, attention of the Chairman
of the Board with a copy to the Company's General Counsel. Either party may
change the notice address by notice given as aforesaid.
9.2 Arbitration. All disputes and controversies arising under
or in connection with this Agreement, other than the seeking of injunctive or
other equitable relief pursuant to Section 7 hereof, shall be settled
exclusively by arbitration in New York City, New York, or such other location
agreed by the parties hereto, in accordance with the rules for expedited
resolution of commercial disputes of the American Arbitration Association
("AAA") then in effect. The determination of the arbitrators shall be final and
binding on the parties. Judgment may be entered on the award of the arbitrator
in any court having proper jurisdiction. All expenses of the AAA and the
arbitrator shall be borne as determined by the arbitrator.
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10. Miscellaneous.
10.1 Entire Agreement. This Agreement supersedes any prior
agreements or understandings, oral or written, between the parties hereto with
respect to the subject matter hereof.
10.2 Modification. This Agreement shall not be varied,
altered, modified, canceled, changed, or in any way amended, nor any provision
hereof waived, except by mutual agreement of the parties in a written instrument
executed by the parties hereto or their legal representatives.
10.3 Severability. In the event that any provision or portion
of this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect.
10.4 Counterparts. This Agreement may be executed in two (2)
or more counterparts, each of which shall be deemed to be an original, but all
of which together will constitute one and the same Agreement.
10.5 Tax Withholding. The Company may withhold from any
benefits payable under this Agreement all federal, state, city, or other taxes
as may be required pursuant to any law or governmental regulation or ruling.
10.6 Governing Law. The provisions of this Agreement shall be
construed and enforced in accordance with the laws of the state of New York,
without regard to any otherwise applicable principles of conflicts of laws.
IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement, as of the day and year first above written.
INTEGRATED TECHNOLOGY USA, INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title:
/s/ Xxxxxx Xxxx
--------------------------------------
Xxxxxx Xxxx
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