EXHIBIT 10.9
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This SECOND AMENDMENT TO EMPLOYMENT AGREEMENT ("AMENDMENT"), is made
and entered into as of April 21, 2003, by and between Xxxxxxx X. Xxxxx (the
"EXECUTIVE") and Metal Management, Inc., a Delaware corporation (the "COMPANY").
WHEREAS, Executive and Company are parties to that certain Employment
Agreement, dated as of April 1, 2000 (the "EMPLOYMENT AGREEMENT"), pursuant to
which Executive is employed as the President and Chief Operating Officer of the
Company. Capitalized terms used herein, and not otherwise defined herein, shall
have the meanings set forth in the Employment Agreement;
WHEREAS, the Employment Agreement was previously amended by that
certain letter, dated as of June 7, 2001, from Xxxxxx X. Xxxxx to Executive,
pursuant to which Executive agreed to a reduction in the severance benefit
payable to Executive upon his termination, other than for cause;
WHEREAS, the parties hereto have agreed to amend the Employment
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises, promises, mutual
covenants and mutual agreements contained herein, the Executive and the Company
hereby agree as follows:
1. AMENDMENT. Section 15 of the Employment Agreement shall be amended
by deleting it in its entirety and substituting the following therefor:
15. SEVERANCE PAY.
(a) Notwithstanding any other provision of this Agreement, if the
Executive's employment is (or is deemed) terminated by the Company
pursuant to Section 13(a):
(i) the Company shall pay the Executive any accrued but unpaid
Salary, prorated vacation, prorated cash bonus and any other
amounts accrued but unpaid as of the date of termination;
(ii) the Company shall pay the Executive a lump-sum severance
payment equal to the Executive's then-current Salary; and
(iii) the Company shall continue all medical, dental and life,
insurance benefits at no cost to the Executive for twelve (12)
months, commencing on the date of the Executive's termination
of employment (and the provision by the Company of any such
group health benefits shall not be considered continuation
coverage pursuant to section 4980B of the Internal Revenue
Code of 1986, as amended (the "Code"), and such
continuation converge shall commence on the date that benefits
provided hereunder cease).
Other than as provided herein, if the Executive's employment is
terminated by the Company pursuant to Section 13(b) hereof, the Company
shall pay to the Executive any accrued but unpaid Salary, prorated
vacation, prorated cash bonus and any other amounts accrued but unpaid
as of the date of termination. Any benefit payable pursuant to this
Section 15 shall be paid to the Executive in a lump-sum within thirty
(30) days after the Executive's termination of employment.
(b) In the event that the Executive becomes entitled to any severance
payments as provided herein, if it is determined that any such payments
will be subject to the tax or any other similar state or local excise
taxes (the "Excise Tax") imposed by section 4999 of the Code (or any
similar tax that may hereafter be imposed), the Company shall "gross
up" such severance payments so that the amount received by the
Executive after payment of such Excise Tax shall be equal to the amount
to which the Executive was entitled prior to application of such Excise
Tax.
2. NO OTHER CHANGES; REFERENCES. Except as expressly amended by this
Amendment, all of the terms and conditions of the Employment Agreement shall
remain in full force and effect. All references in the Employment Agreement to
"this Agreement" shall be deemed to refer to the Employment Agreement as amended
hereby.
3. GOVERNING LAW. This Amendment shall be construed and interpreted,
and the rights of the parties shall be determined, in accordance with the laws
of the State of Illinois without reference to the conflicts or choice of law
principles thereof.
4. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
[Signatures Commence on Following Page]
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
METAL MANAGEMENT, INC
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
3
