Exhibit 10.8
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("AGREEMENT"), is made and entered into as of
January 16, 2004, by and between Xxxxxx Xxxxxx ("EXECUTIVE") and Metal
Management, Inc., a Delaware corporation (the "MTLM").
NOW, THEREFORE, in consideration of the premises, promises, mutual
covenants and mutual agreements contained herein, Executive and MTLM hereby
agree as follows:
1. EMPLOYMENT. (a) On the terms and subject to the conditions set
forth in this Agreement, MTLM employs Executive as its Chief Executive Officer
to perform such duties and responsibilities as are consistent with such position
and such other positions as may be assigned to Executive, from time to time, by
the Board of Directors of MTLM (the "BOARD"). For as long as Executive is so
employed, he shall devote his full business time, energy and ability to his
duties, except for incidental attention to the management of his personal
affairs. Further, during the Employment Period (as defined below), MTLM shall
take all action possible to see that Executive while employed under this
Agreement continues to be nominated and elected to serve on the Board and, if
elected to so serve, that Executive be elected as the Chairman of the Board. If
Executive is Chairman of the Board when his employment terminates under this
Agreement, whether pursuant to Section 6 or 7 of this Agreement, he shall tender
his resignation as Chairman and director effective as of the Termination Date
(as defined below).
(b) Executive's worksites during the Employment Period
(as defined below) shall be 000 X. Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000 and a location in New York City to be mutually agreed upon by MTLM and
Executive, with Executive's time allocated between the two sites as shall be
reasonably determined to be necessary and appropriate by Executive to fulfill
Executive's duties and responsibilities and exercise Executive's powers under
the terms of this Agreement.
(c) Executive shall have the right to continue to serve
on the board of directors of those business, civic and charitable organizations
on which Executive is now serving as of the date of this Agreement, and which
are set forth on EXHIBIT A attached hereto, as long as doing so has no
significant adverse affect on the performance of Executive's duties and
responsibilities or the exercise of Executive's powers under this Agreement.
Executive shall not serve on any other boards of directors and shall not provide
services (whether as an employee or independent contractor) to any for-profit
organization on or after the date of this Agreement without the prior consent of
the Board (which shall not be unreasonably withheld in light of Executive's
duties and responsibilities under this Agreement); provided, however, MTLM
understands and acknowledges that Executive shall be entitled to wrap up or
otherwise complete within 30 days after the date of this Agreement the matters
on which Executive is currently working pursuant to his prior employment.
2. TERM. The term of employment under this Agreement shall
commence on January 16, 2004 (the "COMMENCEMENT DATE") and shall continue
through, and end as of the close of business on March 31, 2008 (the "EMPLOYMENT
PERIOD"); provided, however, that on March 31, 2008 and each anniversary
thereof, the Employment Period shall be extended for an additional year unless
either MTLM or Executive, as the case may be, notifies the other not less
than 60 days prior to the end of the then current Employment Period of its or
his desire not to extend the Employment Period; provided further that the
Employment Period may terminate sooner upon the occurrence of certain events as
described in Sections 5, 6, 7, 8 and 9 of this Agreement. The date on which
Executive's employment is terminated shall be referred to herein as the
"TERMINATION DATE"
3. COMPENSATION.
(a) Base Compensation. The base compensation to be paid
to Executive for his services under this Agreement
shall be not less than $750,000 per year, subject to
applicable withholdings, payable in equal periodic
installments in accordance with the usual payroll
practices of MTLM, but no less frequently than
monthly, commencing on the Commencement Date.
Executive's base compensation shall be subject to
annual review for cost of living and merit factors,
with any adjustments determined by the compensation
committee of the Board. The foregoing is hereafter
referred to as Executive's "BASE COMPENSATION."
(b) Bonuses. During the Employment Period, Executive
shall also be eligible to receive the following:
(i) Signing Bonus. MTLM shall, subject to
applicable withholdings, pay Executive $375,000 as a
signing bonus, such amount to be paid within ten days
after the execution of this Agreement.
(ii) Annual Bonus. For the period ending March
31, 2004, and for each subsequent twelve-month period
during the Employment Period ending March 31,
Executive shall be eligible to receive an annual
bonus in accordance with the terms of MTLM's annual
bonus program as then in effect for MTLM's senior
executives as such program is modified by this
Section 3(b)(ii); provided, however, the compensation
committee of the Board may direct MTLM to pay
Executive an annual bonus which exceeds the annual
bonus otherwise payable under such program or the
minimum annual bonus set forth below. Notwithstanding
anything contained herein to the contrary,
Executive's minimum annual bonus shall (subject to
applicable withholdings) for each period set forth
below shall be the figure set forth opposite such
period:
January 16, 2004 through March 31, 2004 $350,000
March 31, 2004 through March 31, 2005 $750,000
March 31, 2005 through March 31, 2006 $375,000
March 31, 2006 through March 31, 2007 $187,500
Each annual bonus described in this Section 3(b)(ii)
shall be paid at the time called for under MTLM's
annual bonus program for senior executives.
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(c) Restricted Stock. Upon execution and delivery of
the this Agreement by MTLM and Executive, Executive shall be
granted 250,000 shares of common stock, $0.01 par value per
share (the "MTLM STOCK") pursuant to the terms of the Metal
Management, Inc. 2002 Incentive Stock Plan (the "PLAN").
Except as otherwise provided in this Agreement or the Plan,
Executive's interest in 62,500 shares shall become
non-forfeitable on March 31, 2005 provided Executive is still
employed by MTLM on such date, and his interest in an
additional 62,500 shares shall become non-forfeitable on each
of the next three subsequent anniversaries of such date
provided Executive is still employed by MTLM on such
anniversary date. All the terms and conditions to such grant
shall be set forth for Executive in a certificate in
accordance with the terms of the Plan.
(d) Options. Upon execution and delivery of this
Agreement by MTLM and Executive, Executive shall be granted
two options to purchase shares of MTLM Stock pursuant to the
terms of the Plan, one for 50,000 shares of MTLM Stock at an
exercise price of $52.50 per share and another for 50,000
shares of MTLM Stock at an exercise price of $70.00 per share,
exercisable, at the election of Executive, at any time on or
after the date hereof and on or prior to the tenth anniversary
date of this Agreement. All the terms and conditions to such
grant shall be set forth for Executive in a certificate in
accordance with the terms of the Plan.
4. FRINGE BENEFITS. MTLM shall furnish Executive with accident,
health and life insurance and reimbursement of all documented reasonable and
necessary out-of-pocket expenses incurred by Executive on behalf of MTLM by
reason of the performance of Executive's duties and responsibilities hereunder.
Further, MTLM shall furnish Executive with all of the additional fringe benefits
made generally available by MTLM to its executive officers recognizing that such
fringe benefits may be changed from time to time provided Executive shall be
deemed immediately eligible for any such fringe benefits to the extent
permissible under the terms of applicable law and the terms of the underlying
plans, programs and policies. Executive shall be entitled to take five (5) weeks
of paid vacation per calendar year, and shall be paid on all national and state
holidays, during the Employment Period. Vacation allowances shall not be
cumulative from year to year. MTLM shall include Executive as a covered person
under MTLM's directors and officers' insurance policy. MTLM shall furnish
Executive with appropriate office space (as set forth in Section 1(b) of this
Agreement), equipment, supplies, and such other facilities and personnel as
necessary or appropriate (de minimis use thereof by Executive for personal
reasons shall not be deemed a breach of this Agreement). MTLM shall pay
Executive's dues in such societies and organizations as MTLM deems appropriate,
and shall pay on behalf of Executive (or reimburse Executive for) documented
reasonable out-of-pocket expenses incurred by Executive in attending
conventions, seminars, trade shows and other business meetings and business
entertainment and promotional expenses. MTLM shall pay Executive an automobile
allowance of $1,000.00 per month, subject to applicable withholdings.
5. DEATH OR PERMANENT DISABILITY. If, during the Employment
Period, Executive dies (as confirmed by a certificate of death) or Executive is
permanently disabled such that, in the opinion of a physician selected by MTLM
and Executive, Executive is rendered incapable of performing the services
contemplated under this Agreement for a period of twelve (12)
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consecutive months by reason of illness, accident, or other physical or mental
disability ("PERMANENT DISABILITY"), this Agreement shall be deemed to be
terminated as of the date of such death or of the determination of Permanent
Disability. Notwithstanding the foregoing, Executive shall be entitled to the
benefits as provided in Section 8 of this Agreement. During any period prior to
such time when Executive is permanently disabled, as described above, MTLM shall
be obligated to perform its obligations under this Agreement in accordance with
its terms, including, but limited to, its obligations under Section 3 of this
Agreement.
6. INVOLUNTARY TERMINATION. Except in the case of termination for
Cause pursuant to Section 7 of this Agreement, if MTLM terminates Executive's
employment hereunder without Executive's consent, all of Executive's benefits
under this Agreement shall cease immediately upon the date of such termination,
provided that Executive shall continue to be entitled to receive the benefits as
provided in Section 8(b) of this Agreement.
7. TERMINATION VOLUNTARY OR FOR CAUSE.
(a) In the event: (i) Executive voluntarily terminates
his employment hereunder without Good Reason (as
defined below); (ii) pursuant to Section 9(b) of this
Agreement; or (iii) Executive's employment hereunder
is terminated for Cause, unless otherwise provided
herein, all of his compensation and benefits under
this Agreement shall cease immediately upon the date
of such termination, provided that Executive shall be
entitled to receive the compensation provided in
Section 3 of this Agreement paid on a pro rata basis
to the date of such termination.
(b) Termination for Cause. Any of the following events
shall be considered as "CAUSE" for the immediate
termination of the Employment Period by MTLM:
(i) final and non-appealable conviction of
Executive for a felony or a nolo contendere plea with
respect to a felony; or
(ii) final and non-appealable conviction of
Executive for (a) misappropriation by Executive of
funds or property of MTLM or (b) the commission of
other acts of dishonesty relating to his employment;
or
(iii) (a) willful breach of this Agreement which
is not cured by Executive within 10 days following
receipt by Executive of written notice of such breach
from MTLM or (b) material neglect by Executive of any
of his material duties or responsibilities hereunder
which is not cured by Executive within 30 days
following receipt by Executive of written notice of
the acts that MTLM assert constitute such neglect by
Executive, provided, however, that any such willful
breach which is not curable shall be considered Cause
for the immediate termination of the Employment
Period by MTLM; or
(iv) conduct on the part of Executive which is
materially adverse to any known interest of MTLM that
continues unabated, or uncured to the
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reasonable satisfaction of MTLM, after the expiration
of 10 days following receipt of written notice by
Executive from MTLM.
Notwithstanding the foregoing, Executive shall not be
deemed to have been terminated for Cause unless and
until there shall have been delivered to him a
written termination notice signed by a member of the
Board duly authorized to deliver such notice.
8. ACCELERATION OF PAYMENTS.
(a) For this Agreement, the following terms shall have
the following meanings:
(i) "GOOD REASON" shall mean the occurrence of
any of the following events without Executive's
express written consent: (a) a reduction by MTLM of
Executive's compensation provided in Section 3 of
this Agreement; (b) any material breach by MTLM of
any provisions of this Agreement which is not cured
by MTLM within 10 days following receipt by MTLM of
written notice of such breach from Executive; (c) the
assignment of Executive by MTLM without his consent
to a position, responsibility or duties of a
materially lesser status or degree of responsibility
than his position, responsibilities or duties as of
the Commencement Date or (d) the Committee appointed
by the Board to administer the Plan takes action that
materially reduces the value of the stock options
awarded in connection with Section 3(d) of this
Agreement and has the result of treating Executive
materially differently than other employees and
directors who received options, stock appreciation
rights or stock grants under the Plan.
(ii) "TRIGGER DATE" means the date on which a
Triggering Event occurs.
(iii) "TRIGGERING EVENT" means any of: (a) a
resignation of Executive as an employee of MTLM due
to Good Reason; (b) termination of the Employment
Period under Section 5 of this Agreement; or (c)
involuntary termination of the Employment Period by
MTLM, except in the case of termination for Cause.
(b) OCCURRENCE OF TRIGGERING EVENT. Upon the occurrence
of a Triggering Event, Executive shall receive from
MTLM a lump sum payment equal to the Base
Compensation provided under Section 3(a) and the
minimum annual bonuses provided under Section
3(b)(ii) of this Agreement that otherwise would have
been payable to Executive through March 31, 2008 but
for the occurrence of a Triggering Event; provided,
if he would have earned a bonus in accordance with
Section 3(b)(ii) of this Agreement for the fiscal
year in which the Triggering Event occurred if
Executive had remained employed through the end of
the fiscal year, he shall be paid
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such bonus in lieu of the minimum bonus for such
year. Furthermore, any unvested stock options or
stock grants or any unvested long term incentive plan
compensation shall immediately become vested.
Additionally, unless (i) MTLM terminates Executive's
employment for Cause, (ii) Executive terminates this
Agreement without Good Reason, or (iii) this
Agreement is terminated as a result of Executive's
death, Executive shall, at no cost to Executive, be
entitled to continue to participate in the
MTLM-provided health and medical insurance programs
until March 31, 2008, provided, however, that, if
this Agreement is terminated as a result of
Executive's death, Executive's then current spouse
and dependent children shall be entitled to continue
to participate in the MTLM-provided health and
medical insurance programs for one-year after such
death, unless, in each case, such continued
participation is prohibited by any applicable laws or
would otherwise jeopardize the tax qualified status
of any such programs. If MTLM is prohibited by
applicable law or would otherwise jeopardize the tax
qualified status of any health or medical insurance
plan and as a result MTLM terminates coverage, it
shall promptly reimburse Executive for the cost of
obtaining comparable third party coverage.
(c) TIME OF PAYMENT FOLLOWING TRIGGERING EVENT. All
accelerated payments of Base Compensation, bonuses,
and long term incentive plan compensation due to
Executive pursuant to this Section shall be paid
promptly but in any event within thirty (30) days
after the Trigger Date, provided, however, that any
earned bonuses as set forth in Section 3(b)(iii) of
this Agreement shall be paid as otherwise set forth
herein.
9. NON-COMPETITION.
(a) GENERAL. In addition to any other obligations of
Executive under any other agreement with MTLM, in
order to assure that MTLM shall realize the benefits
of this Agreement and in consideration of the
employment set forth in this Agreement, Executive
shall not:
(i) during the period beginning on the date of
this Agreement and ending eighteen months after the
Termination Date (the "NON-COMPETITION PERIOD"),
directly or indirectly, whether through an affiliate
or otherwise, 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 the United
States in which, prior to the Termination Date, MTLM
or any subsidiary or affiliate of MTLM conducts
business or is actively planning to conduct business
and, on and after the Termination Date, MTLM or any
subsidiary or affiliate of MTLM on the Termination
Date conducts business or is actively planning to
conduct business, which business activity is directly
or indirectly in competition with the business, prior
to the Termination Date, that is conducted by or is
actively planned to be conducted by MTLM or any
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subsidiary or affiliate of MTLM and, on and after the
Termination Date, is on the Termination Date
conducted by or is actively planned to be conducted
by MTLM or any subsidiary or affiliate of MTLM;
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; provided, however, that Executive shall not
be bound by the restrictions set forth in this
Section 9(a)(i) if MTLM shall not have cured the
failure to make any material payment to Executive
under this Agreement within 30 days following receipt
by MTLM of written notice from Executive of such
failure unless such failure to make such payment is
due to MTLM's allegation of a material breach of the
terms of this Agreement;
(ii) during the Non-Competition Period, directly
or indirectly (a) induce any person which is a
customer of MTLM or any subsidiary or affiliate of
MTLM on the Termination Date to patronize any
business directly or indirectly in competition with
the business conducted by MTLM or any subsidiary or
affiliate of MTLM on the Termination Date; (b)
canvass, solicit or accept from any person which is a
customer of MTLM or any subsidiary or affiliate of
MTLM on the Termination Date, any such competitive
business, or (c) request or advise any person which
is a customer of MTLM or any subsidiary or affiliate
of MTLM on the Termination Date to withdraw, curtail
or cancel any such customer's business with MTLM or
any subsidiary or affiliate of MTLM on the
Termination Date;
(iii) during the Non-Competition Period, 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 any of MTLM
or any then subsidiary or affiliate of MTLM at or
within six months prior to the Termination Date, or
in any manner seek to induce any such person to leave
his or her employment; or
(iv) directly or indirectly, at any time
following the Termination Date, in any way utilize,
disclose, copy, reproduce or retain in his possession
any of MTLM's or any subsidiary's or affiliate's
proprietary rights or records, including, but not
limited to, any of their customer or price lists.
(b) EXECUTIVE ELECTION TO END NON-COMPETITION PERIOD. In
the event that a Change in Control occurs, Executive
shall have the right to elect, within one hundred
twenty (120) days of such Change of Control ("CHANGE
OF CONTROL EVENT"), to terminate this Agreement,
effective as of ninety (90) days after such election.
The Non-Competition Period shall terminate effective
with the date of such termination. In the event of a
termination under this clause (b), except as
otherwise provided in this clause (b), Executive
shall not be entitled to any separation or severance
benefits
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provided for under this Agreement for periods
following the date of termination notwithstanding
anything in this Agreement to the contrary.
(c) SCOPE OF RESTRICTION. Executive agrees and
acknowledges that the restrictions contained in this
Section 9 are reasonable in scope and duration and
are necessary to protect MTLM after the Commencement
Date. If any provision of this Section 9 as applied
to any party or to any circumstance is adjudged by a
court to be invalid or unenforceable, the same shall
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 9 shall cause irreparable damage to MTLM and
upon breach of any provision of this Section 9, MTLM
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 MTLM may have (including, but not
limited to, the right to seek monetary damages).
10. CHANGE OF CONTROL.
(a) GENERAL. Notwithstanding anything in the Plan to the
contrary, for purposes of this Agreement and with
respect to any options, stock grants and stock
appreciation rights issued under the Plan to
Executive, "CHANGE OF CONTROL" shall be deemed to
mean a "change in control" of the Company of a nature
that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of
1934, as amended (the "1934 ACT"), as in effect at
the time of such "change in control," provided that
such a change in control shall be deemed to have
occurred at such time as (1) any "person" (as that
term is used in Sections 13(d) and 14(d)(2) of the
0000 Xxx) becomes after the effective date of this
Agreement the beneficial owner (as defined in Rule
13d-3 under the 0000 Xxx) directly or indirectly of
securities representing 40% or more of the combined
voting power of the then outstanding securities for
election of directors of the Company or any successor
to the Company, (2) during any period of two
consecutive years or less, individuals who at the
beginning of such period constitute the Board cease,
for any reason, to constitute at least a majority of
the Board, unless the election or nomination for
election of each person who was not a director at the
beginning of such period was approved by vote of at
least two-thirds of the directors then in office who
were directors at the beginning of such period or who
were directors previously so approved, (3) there is a
dissolution or liquidation of the Company or any sale
or disposition of 50% or more of the assets or
business of the Company, or
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(4) there is a reorganization, merger, consolidation
or share exchange (other than a reorganization,
merger, consolidation, or share exchange with a
wholly-owned subsidiary of the Company) of the
Company unless (A) the persons who were the
beneficial owners of the outstanding shares of the
common stock of the Company immediately before the
consummation of such transaction beneficially own
more than 50% of the outstanding shares of the common
stock of the successor or survivor corporation in
such transaction immediately following the
consummation of such transaction and (B) the shares
of the common stock of such successor or survivor
corporation beneficially owned by the persons
described in clause (A) immediately following the
consummation of such transaction are beneficially
owned by each such person in substantially the same
proportion that each such person had beneficially
owned shares of Company common stock immediately
before the consummation of such transaction.
(b) OCCURRENCE OF A CHANGE OF CONTROL TERMINATION
ELECTION. Upon the occurrence of (x) a Change of
Control (as defined below) and (y) Executive's
election to terminate this Agreement, as set forth in
Section 9(b), Executive shall be entitled to receive
an amount equal to the greater of (1) one year's
salary as provided in Section 3(a) of this Agreement
and (2) 50% of the amount provided in Sections 3(a)
and 3(b)(ii) that otherwise would have been payable
to Executive for the remainder of the Employment
Period.
(c) TIME OF BONUS PAYMENTS FOLLOWING CHANGE OF CONTROL
TERMINATION ELECTION. All payments of bonuses due to
Executive pursuant to Section 9(b)(ii) of this
Agreement shall be paid by the later of (y) ninety
(90) days after the Change of Control Event and (z)
receipt of the audit relating to the financial
statements of MTLM for the fiscal year during which
the Change of Control Event occurred.
11. CONFIDENTIALITY OF INFORMATION; DUTY OF NON-DISCLOSURE.
Executive acknowledges and agrees that his employment by MTLM under this
Agreement necessarily involves his understanding of and access to certain trade
secrets and confidential information pertaining to the business of MTLM or any
subsidiary or affiliate of MTLM. Accordingly, during the Employment Period, and
until the expiration of the Non-Competition Period, Executive shall not,
directly or indirectly, without the prior written consent of MTLM, 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 MTLM or any subsidiary or affiliate of MTLM,
including, but not limited to, confidential information pertaining to 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, Executive shall not, directly or
indirectly, remove or retain, without the express prior written consent of MTLM,
and upon termination of this Agreement for any reason shall return to MTLM, any
confidential figures, calculations, letters, papers, records, computer
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disks, computer print-outs, lists, documents, instruments, drawings, designs,
programs, brochures, sales literature, or any copies 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 MTLM or any subsidiary or
affiliate of MTLM or obtained as a result of his employment by MTLM or any
subsidiary or affiliate of MTLM. Executive acknowledges that all of the
foregoing are proprietary information, and are the exclusive property of MTLM.
The covenants contained in this Section 11 shall survive the termination of this
Agreement.
12. AUTHORITY; ENFORCEABILITY. MTLM has full corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement, the performance by MTLM
of its obligations hereunder have been duly and validly authorized by all
necessary corporate action on the part of MTLM. This Agreement has been duly
executed and delivered by MTLM and constitutes a valid and binding agreement of
MTLM, enforceable against MTLM in accordance with its terms, subject to
applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies.
13. GOODWILL. MTLM has invested substantial time and money in the
development of its products, services, territories, advertising and marketing
thereof, soliciting clients and creating goodwill. By accepting employment with
MTLM, Executive acknowledges that the customers are the customers of MTLM and
its subsidiaries and affiliates and that any goodwill created by Executive
belongs to and shall inure to the benefit of MTLM.
14. NO DUTY TO MITIGATE. In the event that Executive's employment
terminates hereunder, MTLM acknowledges and agrees that Executive has no duty to
mitigate the costs to MTLM with respect to any amounts payable hereunder to the
Executive.
15. NOTICES. Any notice or request to be given hereunder to either
party hereto shall be deemed effective only if in writing and either (a)
delivered personally or (b) sent by certified or registered mail, postage
prepaid, to the following addresses or to such other address as either party may
hereafter specify to the other by notice similarly served:
If to Executive:
Xxxxxx Xxxxxx
c/o Xxxxxxx Xxxxxxxxxxxx
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
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with a copy to:
Blank Rome LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
If to MTLM:
Metal Management, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: President
with a copy to:
King & Spalding LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: E. Xxxxxxx Xxxxx, II
Xxxxxxxx X. Xxxxxx
16. ASSIGNMENT. Except as set forth in Section 9(b) of this
Agreement, this Agreement shall be binding upon and inure to the benefit of the
successors and assigns of MTLM, whether by merger, sale of assets or otherwise.
This Agreement shall be binding upon and inure to the benefit of Executive's
heirs.
17. ATTORNEYS' FEES. (a) Upon receipt by MTLM of statement for
legal services from the attorneys representing Executive, MTLM shall reimburse
Executive or to pay on behalf of Executive the reasonable and necessary
attorneys' fees and associated expenses incurred by Executive in connection with
the negotiation of this Agreement.
(b) In the event suit or action is brought by any party
under this Agreement to enforce or construe any of its terms, the prevailing
party shall be entitled to recover, in addition to all other amounts and relief,
its reasonable and necessary attorneys' fees and associated expenses incurred at
and in preparation for arbitration, trial, appeal and review.
18. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of New York without reference to its
choice-of-law principles.
19. MODIFICATION. No modification or waiver of any provision
hereof shall be made unless it is in writing and signed by both of the parties
hereto.
20. SCOPE OF AGREEMENT. This Agreement constitutes the whole of
the agreement between the parties on the subject matter, superseding all prior
oral and written conversations,
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negotiations, understandings, and agreements in effect as of the date of this
Agreement specifically including, but not limited to, the Prior Agreement.
21. SEVERABILITY. To the extent that any provision of this
Agreement may be deemed or determined to be unenforceable for any reason, such
unenforceability shall not impair or affect any other provision, and this
Agreement shall be interpreted so as to most fully give effect to its terms and
still be enforceable.
22. EXECUTION IN COUNTERPARTS. This Agreement 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
METAL MANAGEMENT, INC.
By_____________________________
Xxxx X. XxXxxxxx
Director
_______________________________
Xxxxxx Xxxxxx
12
EXHIBIT A
DIRECTORSHIPS
Metals USA, Inc. (Non-Executive Chairman of the Board of Directors)
