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Exhibit 10.15
August 9, 1998
VIA FAX AND FEDEX
Xx. Xxxxxxx Xxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Dear Xx. Xxxxxxx:
You and Metallurg, Inc., its parents, affiliates, successors and assigns
("Company") agree to the following terms in connection with your resignation
from employment with the Company following a change in control and the Company's
proposal to you for a consulting arrangement:
1. Your employment as President and CEO of Metallurg, Inc. will terminate
effective August 10, 1998 ("Date of Termination"). You will be entitled to
receive all payments and benefits in paragraphs 11(d) and 11(f) of your April
14, 1997 Employment Agreement ("Employment Agreement") which paragraph along
with the applicable definitions are incorporated into this Letter. The lump sum
payment in paragraph 11(d)(3), as modified by paragraph 11(f), namely,
$1,236,240, will be paid within fifteen (15) calendar days of the date of this
Letter, to be transmitted in immediately available U.S. dollars in a manner
agreed upon by the parties. The other payments and benefits in paragraph 11(d)
of the Employment Agreement will be paid in immediately available funds in the
manner specified in the Employment Agreement.
2. The Company intends to retain you as a consultant until June 30, 1999
with an option to renew such arrangement by mutual written agreement for
additional specified periods as appropriate. You will receive $50,000 per
calendar quarter for your services as a consultant or a pro-rated portion
thereof if you work less than the calendar quarter.
3. As a consultant, you will dedicate your best efforts and skills to
assist in the ownership transition including helping to establish and implement
the new executive team, working with key employees in the Company's
subsidiaries, contacting and solidifying relationships with key suppliers and
customers and similar responsibilities assigned to you by the new President, CEO
or Board of Directors. Your services will be rendered on an as-needed basis with
the expectation that you will consult two or three days a week and with the
understanding that this commitment may be more or less depending on the
circumstances and needs of the Company.
4. You will also be appointed as Vice Chairman of the Company's Board of
Directors, with your compensation to be determined by the Board of Director's
compensation committee, to serve until the next meeting of stockholders or until
your successor is chosen and has qualified. You will continue as Chairman of the
Elektrowerk Weisweiler GmbH and Gesellschaft fur Elektrometallurgie GmbH Boards
at your current compensation level, to serve until the next meeting of
stockholders and until your successor is chosen and has qualified.
5. Except as set forth in paragraph 4 above, effective August 10, 1998,
you will resign from all other board or committee positions you hold with the
Company.
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6. You will continue to be obligated to repay your management loan(s) in
accordance with those prior agreements which are incorporated herein.
7. Paragraphs 12 and 13 of the April 14, 1997 Employment Agreement
relating to Confidentiality, Assignment of Rights and Noncompetition are
incorporated into this Letter Agreement as if set forth in full, except that the
restrictions stated therein will apply during any consulting period and the
six-month post-employment noncompetition period specified in paragraph 13(a)
will begin upon termination of the consulting period.
8. Paragraphs 2, 3 and 4 of this Letter set forth the proposed basic terms
for your new relationship with the Company which will be set forth in documents
and agreements to be drafted and which are to contain terms and provisions
mutually acceptable to you and the Company. Paragraphs 1, 6 and 7 acknowledge
and affirm the existing duties and obligations of you and the Company under the
Employment Agreement. This Letter does not create any rights, except the express
acknowledgements of rights and obligations under the Employment Agreement stated
in paragraphs 1, 6 and 7. Except as specified herein, all of the terms and
provisions of the Employment Agreement remain in full force and effect.
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We look forward to continuing our relationship with you and truly
appreciate your assistance in the transition. Please indicate your acceptance of
this Letter by signing below and returning a copy to me by August 9, 1998. Upon
receipt of your signature, we shall immediately instruct the Company's counsel
to prepare the documents and agreements specified in paragraphs 2, 3 and 4. We
understand that you will work promptly and diligently to finalize them and
execute them.
Yours truly,
Metallurg, Inc.
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Xxxx Xxxxxxxxx
Title: Vice President and General Counsel
AGREED TO AND ACCEPTED BY:
/s/ Xxxxxxx Xxxx Xxxxxxx
-----------------------------------
Xxxxxxx Xxxx Xxxxxxx
PARENT COMPANY UNDERTAKING:
Metallurg Holdings, Inc., the owner of all of the outstanding capital stock of
Metallurg, Inc., hereby agrees to cause Metallurg, Inc. to approve this Letter
at its next Board of Directors meeting and to cause this Letter to be duly
executed by an authorized officer of Metallurg, Inc.
Metallurg Holdings, Inc.
By: /s/ Xxxxx Xxxxxxxxxxxxx
-------------------------------
Xxxxx Xxxxxxxxxxxxx, President
cc: Xxxx Xxxxxxxx, Esq. (via fax)
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CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of October 30th, 1998, by and between
Metallurg, Inc., a Delaware corporation (the "Company"), and Xxxxxxx Xxxx
Xxxxxxx (the "Consultant").
W I T N E S S E T H:
WHEREAS, prior to August 10, 1998 (the "Effective Date") Consultant
was the President and Chief Executive Officer of the Company;
WHEREAS, the Company and Consultant entered into an employment
agreement, dated April 14, 1997 (the "Employment Agreement");
WHEREAS, on July 13, 1998, Metallurg Holdings, Inc. purchased all of
the issued and outstanding shares of the Company;
WHEREAS, as of the Effective Date, the Consultant resigned as
President and Chief Executive Officer of the Company pursuant to the Employment
Agreement;
WHEREAS, the Company desires to engage the services of Consultant in
a consulting capacity and Consultant is willing to be engaged by the Company in
a consulting capacity as an independent contractor upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt of which is mutually acknowledged, the Company and Consultant
(individually a "Party" and together the "Parties") agree as follows:
1. Engagement. The Company hereby engages Consultant and Consultant
hereby accepts such engagement on the terms and conditions set forth herein to
serve the Company in a consulting capacity.
2. Term. The period of service of Consultant to the Company will be
for a term commencing on the Effective Date and terminating on June 30, 1999
(the "Consulting Period"). The Consulting Period may be renewed for additional
periods mutually agreed upon by the Parties by a written agreement signed by
both Parties.
3. Duties.
(a) During his engagement hereunder, Consultant shall provide
such consulting services as the Company requires of him from time to time to
assist the Company through the transition relating to the change in ownership of
the Company, and Consultant shall use his best efforts and skill to perform
these services on the terms and conditions set forth herein. The duties of
Consultant shall include, but not be limited to, helping to establish and
implement the Company's new executive team; working with key employees in the
Company's subsidiaries; contacting and solidifying relationships with key
suppliers and customers and similar responsibilities assigned to Consultant by
the President, Chief Executive Officer or the board of directors of the Company
(the "Board"). The Parties hereby
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acknowledge that Consultant's services will generally by required two days per
week, however, Consultant may be obliged to provide consulting services for more
or fewer days per week as requested by the Company.
(b) Consultant was elected Vice Chairman of the Board at the
last meeting of the Board. It is the intention of the parties that Consultant
will hold such position until the next meeting of the Company's stockholders or
until his successor is chosen and qualified, Consultant will be appointed and
will serve as Vice Chairman of the Board.
(c) Consultant will continue to hold the position of Chairman
of the board of directors of Elektrowerk Weisweiler GmbH, a subsidiary of the
Company ("EWW") until the next meeting of EWW's stockholders and until his
successor is chosen and qualified.
(d) Consultant will continue to hold the position of Chairman
of the board of directors of Gesellschaft fur Elektrometallurgie mbH, a
subsidiary of the Company ("GfE") until the next meeting of GfE's stockholders
and until his successor is chosen and qualified.
(e) It is hereby acknowledged and agreed that as of the
Effective Date, Consultant resigned from all board or committee positions, other
than as described in clauses (b) through (d) above, which he formerly held with
the Company and its subsidiaries.
4. Compensation.
(a) As total and exclusive compensation for consulting
services rendered pursuant to this Agreement, the Company agrees to pay
Consultant $50,000 per calendar quarter payable in arrears on the last day of
each calendar quarter. If Consultant provides consulting services for a period
which is less than a calendar quarter, Consultant shall be paid a proportionate
share of $50,000, based on the number of days in such period compared to the
total number of days in the calendar quarter containing such period.
(b) As total and exclusive compensation for Consultant's
position as Vice Chairman of the Board, the Company will pay Consultant such
compensation as is determined by the Board or the Board's compensation
committee.
(c) As total and exclusive compensation for Consultant's
position on the board of directors of each of EWW and GfE, Consultant shall be
paid the amount currently received by Consultant in respect of such positions,
as amended from time to time by the board of directors of EWW and GfE,
respectively.
5. Expenses. All reasonable and customary expenses incurred by
Consultant in the performance of the services required by this Agreement,
including, but not limited to, all related out-of-pocket expenses, shall be
reimbursed by the Company upon appropriate documentation by Consultant in
accordance with the Company's policy for the reimbursement of expenses, as it
exists from time to time.
6. Confidentiality. During the Consulting Period and thereafter,
Consultant shall not disclose to anyone or make use of any trade secret or
proprietary or confidential information of the Company, including any trade
secret or proprietary or confidential information of any customer or other
entity to which the Company owes an obligation not to disclose such information,
which he acquires during the Consulting Period, including but not limited to
records kept in the ordinary course of business, except (i) as such disclosure
or use may be required or appropriate in connection with his work as a
consultant to the Company, (ii) when required to do so by a court of law, by any
governmental agency
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having supervisory authority over the business of the Company or by any
administrative or legislative body (including a committee thereof) with apparent
jurisdiction to order him to divulge, disclose or make accessible such
information, or (iii) as to such confidential information that becomes generally
known to the public or trade without violation of this Section 6.
7. Noncompetition.
(a) Consultant covenants and agrees that during the Consulting
Period and during the six-month period following the end of the Consulting
Period, he shall not at any time, without the prior written consent of the
Company, directly or indirectly, engage in a Competitive Activity. As used
herein, Competitive Activity means any activity engaged in by Consultant,
whether as an employee, principal, sole proprietor, consultant, agent, officer,
director, partner or shareholder (except as a less than one-percent shareholder
of a publicly traded company or a less than five-percent shareholder of a
privately held company), which directly competes with the Company or any
subsidiary. For this purpose, an activity which directly competes with the
Company or any subsidiary shall mean a business that was being conducted by the
Company or any subsidiary during the Consulting Period. Notwithstanding anything
to the contrary in this Section 7(a), an activity shall not be deemed to be a
Competitive Activity (x) solely as a result of Consultant's being employed by or
otherwise associated with a business of which a unit is in competition with the
Company or any subsidiary but as to which unit Consultant does not have direct
or indirect responsibilities for the products or product lines involved or (y)
if the activity contributes less than 5 percent of the revenues for the fiscal
year in question of the business by which Consultant is employed or with which
he is otherwise associated.
(b) The Parties acknowledge that in the event of a breach or
threatened breach of Section 7(a) above, the Company shall not have an adequate
remedy at law. Accordingly, in the event of any breach or threatened breach of
Section 7(a) above, the Company shall be entitled to such equitable and
injunctive relief as may be available to restrain Consultant and any business,
firm, partnership, individual, corporation or entity participating in the breach
or threatened breach from the violation of the provisions of Section 7(a) above.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies available at law or in equity for breach or
threatened breach of Section 7(a) above, including the recovery of damages.
8. Limitations on Authority. Consultant shall have no authority to
bind the Company by or to any obligation, agreement, promise or representation
without first obtaining the Company's prior written approval.
9. Arbitration. Any disputes arising under or in connection with the
Agreement, other than disputes arising in connection with Sections 6 or 7
hereof, may, at the election of Consultant or the Company, be resolved by
binding arbitration, to be held in New York City in accordance with the rules
and procedures of the American Arbitration Association. If arbitration is
elected, Consultant and the Company shall mutually select the arbitrator. If
Consultant and the Company cannot agree on the selection of an arbitrator, each
Party shall select an arbitrator and the two arbitrators shall select a third
arbitrator, and the three arbitrators shall form an arbitration panel which
shall resolve the dispute by majority vote. Judgment upon the award rendered by
the arbitrator(s) may be entered in any court having jurisdiction thereof. Costs
of the arbitration or litigation, including, without limitation, reasonable
attorneys' fees of both Parties, shall be borne by the Company. Pending the
resolution of any arbitration or court proceeding, the Company shall continue
payment of all amounts due Consultant under this Agreement and all benefits to
which Consultant is entitled at the time the dispute arises.
10. Entire Agreement. This instrument contains the entire agreement
of the Parties with respect to the subject matter hereof. Any other oral or
written agreements entered into with respect
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hereto are hereby revoked and superseded by this Agreement. No modifications
shall be made hereto except by agreement in writing signed by both Parties.
11. Paragraph Headings. The paragraph headings of this Agreement are
for convenience of reference only and shall not limit or define the text
thereof.
12. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect and such provision or portion
of this Agreement shall remain in effect to the fullest extent permitted by law.
13. Notices. All notices and other communications which are required
or permitted hereunder shall be in writing and shall be sufficient if mailed by
registered or certified mail, postage prepaid to the following addresses:
If to Consultant:
Xxxxxxx X. Xxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
If to the Company:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or such other address as any Party hereto shall have specified by notice in
writing to the other Party hereto. All such notices and communications shall be
deemed to have been received on the date of delivery thereof or the third
business day after the mailing thereof, whichever is earlier.
14. Amendments and Waivers. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the Party
against whom enforcement or any such modification or amendment is sought. Either
Party hereto may, by an instrument in writing, waive compliance by the other
Party with any term or provision of this Agreement on the part of such other
Party hereto to be performed or complied with. The waiver by any Party hereto of
a breach of any term or provision of this Agreement shall not be construed as a
waiver of any subsequent or other breach, whether or not similar to the breach
waived.
15. Counterparts. This Agreement may be executed in one or more
counterparts and all such counterparts so executed shall constitute an original
agreement binding on all the Parties but together shall constitute but one
instrument.
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16. Successors. This Agreement shall inure to the benefit of, and
shall be binding upon, the Parties hereto and their respective successors,
assigns, heirs and legal representatives. Insofar as Consultant is concerned,
this Agreement, being personal, cannot be assigned. This Agreement shall not be
assignable by the Company unless there shall occur (i) a sale of all or
substantially all of the assets of the Company, (ii) a dissolution or
liquidation of the Company or (iii) a merger of the Company into another entity
in which the Company is not the surviving corporation.
17. Governing Law. This Agreement shall be construed and governed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws principles thereof.
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IN WITNESS WHEREOF, Consultant and the Company have executed this
Agreement on the date first above set forth.
METALLURG, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: President
CONSULTANT
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx
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