EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made and entered into as of January 3, 2000 between
Envirosource, Inc., a Delaware corporation having its principal executive office
at Horsham, Pennsylvania (the "Company"), and Xxxx X. Xxxxxx (the "Employee").
RECITALS
WHEREAS, the Company desires to employ the Employee in an executive
capacity and the Employee desires to be in the Company's employ;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Employee hereby agree as follows:
1. Employment and Term.
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1.1 The Company agrees to employ, or cause one of its subsidiaries to
employ, the Employee, and the Employee agrees to accept such employment. The
authority, duties and responsibilities of the Employee shall include those
described in this Agreement, and such other or additional duties of an executive
nature as may from time to time be assigned to the Employee by the President of
the Company or by the Board of Directors. While employed hereunder, the Employee
shall devote substantially all of his business time and attention to the affairs
of the Company and use his best efforts to perform faithfully and efficiently
his duties and responsibilities; provided that the Employee may (i) serve on
civic or charitable boards or committees, (ii) manage personal investments, or
(iii) with the prior approval of the President of the Company, serve on
corporate boards, so long as such activities do not significantly interfere with
the performance of the Employee's obligations under this Agreement.
1.2 Unless sooner terminated pursuant to other provisions hereof, the
Employee's period of employment under this Agreement shall be three years (the
"Employment Period"), initially commencing on January 3, 2000 and terminating on
January 2, 2003. The Company may renew this Agreement, with the consent of the
Employee, by giving written notice to the Employee at least 30 days prior to the
end of the then effective Employment Period. If the Employee gives written
notice of his consent to the Company within 20 days following receipt of the
Company's notice of its intention to renew, this Agreement shall be renewed on
the terms in effect as of the renewal date.
2. Compensation and Benefits.
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2.1 Base Salary. As initial compensation for his services provided
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hereunder, the Company shall pay to the Employee an initial annual base salary
equal to the Employee's annual base salary in effect as of the date hereof (the
"Base Salary"). The Compensation Committee of the Board of Directors shall
annually during the term of this Agreement review the Employee's Base Salary
and, in its discretion if deemed appropriate, increase the same. If the
Employee's Base Salary is increased, it shall not thereafter be reduced below
the new Base Salary level. The Base Salary shall be payable in equal
semi-monthly installments or in accordance with the Company's established
policy, subject to such payroll and withholding deductions as may be required by
law and other deductions, as directed by the Employee, applied generally to
employees of the Company for insurance and other employee benefit plans.
2.2 Bonus. In addition to the Base Salary, the Employee shall be
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eligible for an annual incentive bonus, under the Company's Management Incentive
Compensation Plan or otherwise, based on the achievement of certain financial
and individual performance targets to be set by the Compensation Committee of
the Board of Directors on an annual basis. If such targets are met, the
Employee's annual incentive bonus will be equal to such percentage of his Base
Salary as the Compensation Committee of the Board of Directors shall designate
on an annual basis; provided however, that if a Change in Control occurs, the
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Compensation Committee of the Board of Directors shall not designate a
percentage of less than 30% thereafter. If such targets are exceeded, the
Employee's annual incentive bonus will be higher than the designated percentage,
calculated in accordance with a formula to be set by the Compensation Committee
of the Board of Directors. The annual incentive bonus shall be paid no later
than March 31st of the year following the year in which it is earned. For
example, the annual incentive bonus for the year 2000, if any, shall be paid no
later than March 31, 2001.
2.3 Incentive, Savings and Retirement Plans. The Employee shall be
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eligible to participate in and shall receive all benefits under all executive
incentive, savings and retirement plans and programs maintained by the Company
for the benefit of its executive officers and/or employees. The Employee shall
be eligible to be considered for option grants under the Company's stock option
plans, but the determination of whether the Employee shall receive grants, and
the amount and terms of any such grants that may be awarded, shall be in the
sole discretion of the Compensation Committee of the Board of Directors.
2.4 Other Benefit Plans. The Employee and/or the Employee's dependents,
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as the case may be, shall be eligible to participate in and shall receive all
benefits under each insurance and other benefit plan of the Company maintained
for the benefit of its employees, including vacation.
2.5 Reimbursement of Expenses. Subject to the Company's policy
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regarding the reimbursement of reasonable travel and business expenses as in
effect from time to time during the Employment Period, the Company shall
reimburse the Employee for such expenses from time to time, at the Employee's
request upon presentation of expense statements and such other supporting
information as the Company may customarily require of it executives.
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3. Termination.
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3.1 Death. This Agreement shall terminate automatically upon the death
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of the Employee. Notwithstanding the termination of this Agreement by virtue of
the death of Employee, should Employee be living and employed by Company on
December 31st of any year, his estate shall be paid the incentive bonus due to
Employee in accordance with the terms and time periods provided for in Section
2.2 hereof.
3.2 Disability. The Company may terminate this Agreement, upon written
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notice to the Employee delivered in accordance with Sections 3.7 and 9.2 hereof,
upon the Disability of the Employee.
3.3 Cause. The Company may terminate this Agreement for Cause, upon
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written notice to the Employee delivered in accordance with Sections 3.7 and 9.2
hereof. For purposes of this Agreement, "Cause" means (a) the conviction of, or
plea of guilty or nolo contendere by, the Employee of a felony or other serious
crime, (b) the Employee's grossly negligent or willful refusal to perform his
duties and responsibilities as contemplated in this Agreement, but only after
Employee has received written notice from the Company setting forth with
particularity Employee's performance deficiency and Employee has failed to cure
such deficiency to the Company's reasonable satisfaction within 30 days of
receipt of such notice, (c) the Employee's engaging in activities which would
constitute a breach of any term of this Agreement, but only after Employee has
received written notice from the Company setting forth with particularity
Employee's breach and Employee has failed to cure such breach to the Company's
reasonable satisfaction within five days of receipt of such notice, or (d)
Employee's engaging in fraud or other illegal conduct to the material detriment
of the Company.
3.4 Without Cause. The Company may terminate this Agreement Without
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Cause, upon written notice to the Employee delivered in accordance with Sections
3.7 and 9.2 hereof. For purposes of this Agreement, the Employee will be deemed
to have been terminated "Without Cause" if the Employee is terminated by the
Company for any reason other than Cause, Disability, death or non-renewal.
3.5 Termination by Employee. (a) The Employee may terminate this
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Agreement, upon written notice to the Company inaccordance with Sections 3.7 and
9.2 hereof.
(b) If such notice is delivered within six months of a Change in
Control, then the Company shall pay to the Employee the amounts set forth in
Section 4.3 hereof if:
(i) the Employee has not been offered a position similar
to his position at the time of the Change in Control
with similar responsibilities and equal or greater
compensation than he was being paid at the time of
the Change in Control; or
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(ii) the Employee has been asked to move his principal
office beyond 35 miles from the Employee's then-
current principal office location; or
(iii) the successor to the Company or the purchaser of its
assets has not assumed the obligations of the Company
under this Agreement at the time of the Change in
Control.
3.6 Release. If the Employee's employment shall terminate during the
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Employment Period, or if the Company does not propose to renew this Agreement
pursuant to Section 1.2 hereof, the Employee agrees, upon payment to the
Employee of all amounts due under Sections 4.2, 4.3 or 4.4 hereof, as
applicable, to execute a release of claims in the form attached hereto as
Exhibit A.
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3.7 Notice of Termination. Any termination of this Agreement (i) by the
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Company for Cause, Without Cause or as a result of the Employee's Disability or
(ii) by the Employee for any reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (a) indicates the specific termination provision in this Agreement relied
upon, (b) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Employee's employment under the provision
so indicated and (c) specifies the termination date, if such date is other than
the date of receipt of such notice.
4. Obligations of Company upon Termination.
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4.1 By the Company for Cause or by Employee other than in connection
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with a Change in Control. If this Agreement shall be terminated either by the
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Company for Cause or by the Employee for any reason other than pursuant to
Section 3.5(b) hereof, the Company shall pay to the Employee, in a lump sum in
cash within 30 days after the Date of Termination, the aggregate of the
Employee's Base Salary (as in effect on the Date of Termination) through the
Date of Termination, if not theretofore paid, and, in the case of compensation
previously deferred by the Employee, all amounts of such compensation previously
deferred and not yet paid by the Company.
4.2 By the Company Without Cause. If this Agreement shall be
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terminated by the Company Without Cause:
(i) The Company shall pay to the Employee, in a lump sum in
cash within 30 days after the Date of Termination, the sum of (A) the
aggregate of the Employee's Base Salary (as in effect on the Date of
Termination) through the Date of Termination, if not theretofore paid,
and, in the case of compensation previously deferred by the Employee,
all amounts of such compensation previously deferred and not yet paid
by the Company, (B) a severance payment equal to one year of Base
Salary (as in effect on the Date of Termination) plus the amount of the
target bonus that would be payable to the Employee for the year in
which the termination occurs (such target bonus amount to be payable
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regardless of the Company's actual results for such year); and (C) if
the same has not been previously paid to the Employee, the incentive
bonus, if any, earned by the Employee as provided in Section 2.2 of
this Agreement for the year preceding the year of termination
(Notwithstanding the foregoing, unless the Company shall have
terminated this Agreement Without Cause within six months of a Change
in Control, the amount provided in clause (B) may be paid, at the
Company's option, over a twelve-month period commencing on the Date of
Termination in 24 equal semi-monthly installments, rather than in a
lump sum.); and
(ii) for the 12-month period following the Date of
Termination, the Employee and the Employee's dependents shall continue
to be eligible to participate in the medical benefit plans and
arrangements of the Company, on the same terms and conditions
(including the amount of Employee's required contributory premium
payments) in effect for the Employee and the Employee's dependents
immediately prior to the Date of Termination; and
(iii) the Company will provide the Employee with
executive-level outplacement services through Manchester Partners
International or a comparable outplacement services company; provided
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however, that the Company shall not be required to spend more than
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$15,000 for such services.
The Company's obligations under this Section 4.2 shall terminate if the
Employee violates his obligations under Sections 6, 7 or 8 hereof, and the
Company shall have no obligation to make any remaining payments to the Employee
after the date of any such violation. The parties agree that the benefits
provided in this Section 4.2 are the sole and exclusive remedies available to
the Employee in the event of termination Without Cause.
4.3 By Employee upon Change in Control. If this Agreement shall
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be terminated by the Employee pursuant to Section 3.5(b) hereof:
(i) The Company shall pay to the Employee, in a lump sum in
cash within 30 days after the Date of Termination, the sum of (A) the
aggregate of the Employee's Base Salary (as in effect on the Date of
Termination) through the Date of Termination, if not theretofore paid,
and, in the case of compensation previously deferred by the Employee,
all amounts of such compensation previously deferred and not yet paid
by the Company, (B) a severance payment equal to one year of Base
Salary (as in effect on the Date of Termination) plus the amount of the
target bonus that would be payable to the Employee for the year in
which the termination occurs (such target bonus amount to be payable
regardless of the Company's actual results for such year); and (C) if
the same has not been previously paid to the Employee, the incentive
bonus, if any, earned by the Employee as provided in Section 2.2 of
this Agreement for the year preceding the year of termination; and
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(ii) for the 12-month period following the Date of
Termination, the Employee and the Employee's dependents shall continue
to be eligible to participate in the medical benefit plans and
arrangements of the Company, on the same terms and conditions
(including the amount of Employee's required contributory premium
payments) in effect for the Employee and the Employee's dependents
immediately prior to the Date of Termination; and
(iii) the Company will provide the Employee with
executive-level outplacement services through Manchester Partners
International or a comparable outplacement services company; provided
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however, that the Company shall not be required to spend more than
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$15,000 for such services.
The Company's obligations under this Section 4.3 shall
terminate if the Employee violates his obligations under Sections 6, 7
or 8 hereof, and the Company shall have no obligation to make any
remaining payments to the Employee after the date of any such
violation.
4.4 Non-renewal by the Company. If the Company does not propose
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to renew this Agreement in accordance with Section 1.2 hereof:
(i) The Company shall pay to the Employee, in a lump sum in
cash within 30 days after the date of the expiration of this Agreement
(the "Expiration Date"), the sum of (A) the aggregate of the Employee's
Base Salary (as in effect on the Expiration Date) through the
Expiration Date, if not theretofore paid, and, in the case of
compensation previously deferred by the Employee, all amounts of such
compensation previously deferred and not yet paid by the Company, (B) a
severance payment equal to one year of Base Salary (as in effect on the
Expiration Date); and (C) if the same has not been previously paid to
the Employee, the incentive bonus, if any, earned by the Employee as
provided in Section 2.2 of this Agreement for the year preceding the
year in which the Expiration Date occurs (Notwithstanding the
foregoing, unless the Expiration Date occurs within six months of a
Change in Control, the amount provided in clause (B) may be paid, at
the Company's option, over a twelve-month period commencing on the
Expiration Date in 24 equal semi-monthly installments, rather than in a
lump sum.); and
(ii) for the 12-month period following the Expiration Date,
the Employee and the Employee's dependents shall continue to be
eligible to participate in the medical benefit plans and arrangements
of the Company, on the same terms and conditions (including the amount
of Employee's required contributory premium payments) in effect for the
Employee and the Employee's dependents immediately prior to the
Expiration Date; and
(iii) the Company will provide the Employee with
executive-level outplacement services through Manchester Partners
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International or a comparable outplacement services company; provided
however, that the Company shall not be required to spend more than
$15,000 for such services.
The Company's obligations under this Section 4.4 shall terminate if the
Employee violates his obligations under Sections 6, 7 or 8 hereof, and the
Company shall have no obligation to make any remaining payments to the Employee
after the date of any such violation. The parties agree that the benefits
provided in this Section 4.4 are the sole and exclusive remedies available to
the Employee in the event the Company does not propose to renew this Agreement
pursuant to Section 1.2 hereof.
5. General Duties of the Employee.
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5.1 The Employee agrees and acknowledges that he owes a duty of
loyalty, fidelity and allegiance to act at all times in the best interests of
the Company, to not knowingly become involved in a conflict of interest and to
not knowingly do any act or knowingly make any statement, oral or written, which
would injure the Company's business, its interests or its reputation unless
required to do so in any legal proceeding by a competent court with proper
jurisdiction.
5.2 The Employee agrees to comply at all times during the Employment
Period with all applicable policies, rules and regulations of the Company,
including, without limitation, the Company's policy regarding trading in the
Common Stock, as is in effect from time to time during the Employment Period.
6. Employee's Confidentiality Obligation.
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6.1 The Employee hereby acknowledges, understands and agrees that all
Confidential Information is the exclusive and confidential property of the
Company and its Affiliates which shall at all times be regarded, treated and
protected as such in accordance with this Section 6. The Employee acknowledges
that all such Confidential Information is in the nature of a trade secret.
6.2 For purposes of this Agreement, "Confidential Information" means
information, which is used in the business of the Company or its Affiliates and
(a) is proprietary to, about or created by the Company or its Affiliates, (b)
gives the Company or its Affiliates some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company or its Affiliates, (c) is designated
as Confidential Information by the Company or its Affiliates, is known by the
Employee to be considered confidential by the Company or its Affiliates, or from
all the relevant circumstances should reasonably be assumed by the Employee to
be confidential and proprietary to the Company or its Affiliates or (d) is not
generally known by non-Company personnel.
6.3 As a consequence of the Employee's acquisition or anticipated
acquisition of Confidential Information, the Employee shall occupy a position of
trust and confidence with respect to the affairs and business of the Company and
its Affiliates. In view of the foregoing and of the consideration to be provided
to the Employee, the Employee agrees that it is reasonable and necessary that
the Employee make each of the following covenants:
(a) At any time during the Employment Period and thereafter,
the Employee shall not disclose Confidential Information to any person or
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entity, either inside or outside of the Company, other than as necessary in
carrying out his duties and responsibilities as set forth in Section 5 hereof,
without first obtaining the Company's prior written consent (unless such
disclosure is compelled pursuant to court orders or subpoena, and at which time
the Employee shall give notice of such proceedings to the Company and provide
the Company with an opportunity to resolve such disclosure in a manner
reasonably acceptable to the Company).
(b) At any time during the Employment Period and thereafter,
the Employee shall not use, copy or transfer Confidential Information other than
as necessary in carrying out his duties and responsibilities as set forth in
Section 5 hereof, without first obtaining the Company's prior written consent.
(c) On the Date of Termination, the Employee shall promptly
deliver to the Company (or its designee) all written materials, records and
documents made by the Employee or which came into his possession prior to or
during the Employment Period concerning the business or affairs of the Company
or its Affiliates, including, without limitation, all materials containing
Confidential Information.
7. Employee's Nonsolicitation Obligation. The Employee agrees that he
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shall not, during the Employment Period and for one year following the Date of
Termination, directly or indirectly, on behalf of the Employee or any other
person, (i) solicit for employment by other than the Company any person known by
the Employee to be employed by the Company or its Affiliates at the Date of
Termination or within the six-month period prior thereto; or (ii) induce,
attempt to induce or knowingly encourage any Customer (as defined below) to
divert any business or income from the Company or any of its Affiliates or to
stop or alter the manner in which they are then doing business with the Company
or any of its Affiliates. The term "Customer" small mean any individual or
business firm that was or is a customer or client of, or whose business was
actively solicited by, the Company or any of its Affiliates at any time,
regardless of whether such customer was generated, in whole or in part, by the
Employee's efforts.
8. Employee's Noncompetition Obligation. The Employee agrees that he
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shall not, for a period of one year following the Date of Termination, directly
or indirectly: (a) own or control any debt, equity or other interest in (except
as a passive investor of less than 1% of the capital stock or publicly traded
notes or debentures of a publicly held company), or (b) (1) act as a director,
officer, manager, employee, participant or consultant to or accept or solicit
any office to act as any of the foregoing or (2) be obligated to or connected in
any advisory, business or ownership capacity, in each case with respect to any
business engaged in by the Company or any of its subsidiaries at the Date of
Termination or which is being actively pursued by the Company or any of its
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subsidiaries at that time. Notwithstanding the foregoing, if the Company is
obligated to make payments to the Employee under any of Sections 4.2, 4.3 or
4.4, the Employee's obligations under this Section 8 shall terminate immediately
if the Company fails to timely perform its obligations under Section 4.2, 4.3 or
4.4, as applicable. The Employee's noncompetition obligation as set forth in
this Section 8 shall supercede and replace any noncompetition agreement the
Employee may have entered into with the Company or any of its subsidiaries prior
to the date of this Agreement.
9. Miscellaneous.
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9.1 Certain Definitions. As used in this Agreement, the following
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terms have the meanings set forth below:
"Affiliate" is used in this Agreement to define a relationship
to a person or entity and means a person or entity who, directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, such person or entity.
"Base Salary" shall have the meaning assigned thereto in
Section 2.1 hereof.
"Cause" shall have the meaning assigned thereto in Section 3.3
hereof.
"Change in Control" of the Company shall be deemed to have
occurred if (a) the Company merges or consolidates with any other corporation
(other than a wholly-owned direct or indirect subsidiary of the Company) and is
not the surviving corporation (or survives as a subsidiary of another
corporation) and, after such merger or consolidation, the Company's shareholders
immediately prior to such merger or consolidation do not own Voting Stock
representing a majority of the outstanding shares of Voting Stock of the
surviving corporation or do not otherwise have the right to elect a majority of
the board of directors of the surviving corporation, (b) the Company sells or
agrees to sell all or substantially all of its assets to any other person or
entity and, after such sale, the Company's shareholders immediately prior to
such sale do not own Voting Stock representing a majority of the outstanding
shares of Voting Stock of such person or entity or do not otherwise have the
right to elect a majority of the board of directors of such person or entity,
(c) any third person or entity (other than a person or entity, or an Affiliate
thereof, that is a shareholder of the Company on the Effective Date, a trustee
or committee of any qualified employee benefit plan of the Company) together
with its Affiliates shall become, directly or indirectly, the beneficial owner
(as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder) of at least 50% of the
Voting Stock of the Company or (d) the individuals who constitute the Board of
Directors of the Company as of the Effective Date (the "Incumbent Board") shall
cease for any reason to constitute at least a majority of the Board of
Directors; provided, that any person becoming a director whose election or
nomination for election was approved by a majority of the members of the
Incumbent Board shall be considered, for the purposes of this Agreement, a
member of the Incumbent Board.
"Common Stock" means the Company's common stock, par value
$0.05 per share.
"Confidential Information" shall have the meaning assigned
thereto in Section 6.2 hereof.
"Date of Termination" means the earliest to occur of (a) the
date of the Employee's death, (b) the date on which the Employee terminates his
employment with the Company for any reason or (c) the date of receipt of the
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Notice of Termination, or such later date as may be prescribed in the Notice of
Termination in accordance with Section 3.7 hereof.
"Disability" means an illness or other disability which
prevents the Employee from discharging his responsibilities under this Agreement
for a period 180 consecutive calendar days, or an aggregate of 180 calendar days
in any calendar year, during the Employment Period, all as determined in good
faith by the Board of Directors of the Company (or a committee thereof).
"Effective Date" means January 3, 2000.
"Employment Period" shall have the meaning assigned thereto in
Section 1.2 hereof.
"Expiration Date" shall have the meaning assigned thereto in
Section 4.4 hereof.
"Notice of Termination" shall have the meaning assigned
thereto in Section 3.7 hereof.
"Voting Stock" means all outstanding shares of capital stock
of the Company entitled to vote generally in an election of directors; provided,
however, that if the Company has shares of Voting Stock entitled to more or less
than one vote per share, each reference to a proportion of the issued and
outstanding shares of Voting Stock shall be deemed to refer to the proportion of
the aggregate votes entitled to be cast by the issued and outstanding shares of
Voting Stock.
"Without Cause" shall have the meaning assigned thereto in
Section 3.4 hereof.
9.2 Notices. All notices and other communications required or permitted
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hereunder or necessary or convenient in connection herewith shall be in writing
and, if given by telegram, telecopy or telex, shall be deemed to have been
validly served, given or delivered when sent, if given by personal delivery,
shall be deemed to have been validly served, given or delivered upon actual
delivery and, if mailed, shall be deemed to have been validly served, given or
delivered three business days after deposit in the United States mail, as
registered or certified mail, with proper postage prepaid and addressed to the
party or parties to be notified, at the following addresses:
If to the Company to:
Envirosource, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Employee to:
Xxxx X. Xxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
or to such other names, addresses, telephone and fax numbers as the Company or
the Employee, as the case may be, shall designate by notice to the other party
hereto in the manner specified in this Section 9.2.
9.3 Waiver of Breach. The waiver by any party hereto of a breach of any
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provision of this Agreement shall neither operate nor be construed as a waiver
of the breach of any other provision or of any subsequent breach by any party.
9.4 Assignment. This Agreement shall be binding upon and inure to the
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benefit of the Company, its successors, legal representatives and assigns, and
upon the Employee, his heirs, executors, administrators, representatives and
assigns; provided, however, that (i) the Employee agrees that his rights and
obligations hereunder are personal to him and may not be assigned without the
express written consent of the Company, and (ii) the Company may not assign its
rights and obligations hereunder without Employee's express written consent
except to the acquiring entity in connection with the transfer, exchange or sale
of all or substantially all of the Company's assets.
9.5 Entire Agreement; No Oral Amendments. This Agreement constitutes
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the entire agreement between the Employee and the Company with respect to the
subject matter of this Agreement. This Agreement may not be modified in any
respect by any oral statement, representation or agreement made by any employee,
officer, or representative of the Company or by any written agreement unless
signed by an officer of the Company who is expressly authorized by the Company
to execute such document.
9.6 Enforceability. If any provision of this Agreement or application
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thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
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provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application.
9.7 Jurisdiction. The laws of the Commonwealth of Pennsylvania shall
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govern the interpretation, validity and effect of this Agreement without regard
to the place of execution or the place for performance thereof.
9.8 Injunctive Relief. The Company and the Employee agree that a breach
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of any term of this Agreement by the Employee would cause irreparable damage to
the Company and that, in the event of such breach, the Company shall have, in
addition to any and all remedies of law, the right to any injunction, specific
performance and other equitable relief to prevent or to redress the violation of
the Employee's duties or responsibilities hereunder.
9.9 Employee's Representation. Employee shall be, and he represents
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that he is, free to enter into this Agreement and is not and will not become to
a party to agreement which would prohibit the Employee from accepting employment
with the Company or from performing his duties and obligations to the Company
hereunder.
9.10 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and both of which
together shall be deemed one Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY":
ENVIROSOURCE, INC.
By:/s/Xxxx X. XxXxxxxx
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Its: President
"EMPLOYEE":
/s/Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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EXHIBIT A
GENERAL RELEASE
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1. I, Xxxx X. Xxxxxx, for and in consideration of the
benefits to be received by me pursuant to the provisions of that certain
Employment Agreement by and between me and Envirosource, Inc. ("Envirosource")
entered into as of January 3, 2000 (the "Agreement"), and in connection with the
termination of my employment with Envirosource effective , do
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hereby REMISE, RELEASE, AND FOREVER DISCHARGE Envirosource and its subsidiaries
and affiliates, their officers, directors, shareholders, partners, employees and
agents, their respective successors and assigns, heirs, executors and
administrators (hereinafter collectively referred to as "ENSO"), acting in any
capacity whatsoever, of and from any and all manner of actions and causes of
actions, suits, debts, claims and demands whatsoever in law or in equity, which
I ever had, now have, or hereafter may have, or which my heirs, executors or
administrators hereafter may have, by reason of any matter, cause or thing
whatsoever from the beginning of my employment with ENSO to the date of these
presents and particularly, but without limitation of the foregoing general
terms, any claims arising from or relating in any way to my employment
relationship and the termination of my employment relationship with ENSO,
including but not limited to, any claims which have been asserted, could have
been asserted, or could be asserted now or in the future under any federal,
state or local laws, including any claims under the Age Discrimination in
Employment Act, 29 U.S.C.ss.621 et seq., Title VII of the Civil Rights Act of
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1964, 42 U.S.C.ss.2000e et seq., the Pennsylvania Human Relations Act, 43
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P.S.ss.951 et seq., or the human relations laws of any other State
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any contracts between ENSO and me and any common law claims now or hereafter
recognized and all claims for counsel fees and costs.
2. I further agree and covenant that neither I, nor any
person, organization or other entity on my behalf, will file, charge, claim, xxx
or cause or permit to be filed, charged, or claimed, any action for personal
equitable, monetary or other similar relief against Envirosource, involving any
matter occurring at any time in the past up to the date of this General Release,
or involving any continuing effects of any actions or practices which may have
arisen or occurred prior to the date of this General Release, including any
charge of discrimination under Title VII, the ADEA, the Pennsylvania Human
Relations Act or the human relations laws of any other State. In addition, I
also agree and covenant that should I, or any other person, organization or
entity on my behalf, file, charge, claim, xxx or cause or permit to be filed,
charged, or claimed, any action for damages, including injunctive, declaratory,
monetary or other relief, despite my agreement not to do so hereunder, then I
will pay all of the costs and expenses of ENSO (including reasonable attorneys'
fees) incurred in the defense of any such action or undertaking.
3. I agree, covenant and promise that I will not in any way
communicate the terms of this General Release to any person other than my
immediate family and my attorney.
4. I hereby certify that I have read the terms of this General
Release, that I have been advised by Envirosource to discuss it with my
attorney, and that I understand its terms and effects. I acknowledge, further,
that I am executing this General Release of my own volition with a full
understanding of its terms and effects and with the intention of releasing all
claims recited herein in exchange for the consideration described in the
Agreement, which I acknowledge is adequate and satisfactory to me. None of the
above-named parties, nor their agents, representatives, or attorneys have made
any representations to me concerning the terms or effects of this General
Release other than those contained herein.
6. I hereby acknowledge that I have been informed that I have
the right to consider this General Release for a period of 21 days prior to
execution. I also understand that I have the right to revoke this General
Release for a period of seven days following execution by giving written notice
to Envirosource at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000.
Intending to be legally bound hereby, I execute the foregoing
General Release this day of , .
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Witness Xxxx X. Xxxxxx
