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Exhibit 10.4
July 12, 2001
Monsieur Xxxxxxxx Xxxxxxx de Janvry
Tour Maine-Montparnasse 33
Avenue Du Maine F-75755
Xxxxx Xxxxx 00, Xxxxxx
Dear Monsieur Choppin de Janvry:
AGREEMENT FOR EXECUTIVE SERVICES
You are aware that Special Metals Corporation and its direct and
indirect wholly-owned subsidiaries wish to have you, Monsieur Xxxxxxxx Xxxxxxx
de Janvry (hereinafter referred to as "EXECUTIVE") provide executive managerial
services. With regard thereto, Special Metals Corporation, on behalf of itself
and its direct and indirect wholly-owned subsidiaries (hereinafter collectively
referred to as "SPECIAL") offer this letter of Agreement.
1. The scope of work (hereinafter referred to as "EXECUTIVE SERVICES")
shall generally consist of, but not be limited to, providing
assistance, advice, recommendations and direction to SPECIAL's
personnel and other individuals specified by SPECIAL in all aspects of
management.
2. The EXECUTIVE SERVICES authorized hereby, which began on October 1,
2000, will continue up to December 31, 2004.
3. EXECUTIVE shall be an independent contractor and shall not be an
employee of SPECIAL, but EXECUTIVE may be an employee of Special Metals
Corporation's indirect subsidiary, Special Metals SARL.
4. Charges for EXECUTIVE SERVICES performed hereunder shall be based upon
a rate of Five Thousand Three Hundred Fifty Dollars ($5,350.00) per
month. SPECIAL is to pay, in addition to the foregoing, reasonable
travel expenses incurred in the performance of EXECUTIVE SERVICES and
subsistence during said travel, provided that expense reports are
timely submitted to SPECIAL. In addition, Special Metals Corporation
shall direct its indirect subsidiary, Special Metals SARL, to pay
EXECUTIVE at the annual rate of 1,340,000 French Francs ("FF") in equal
monthly installments, retroactive to May 1, 2001; and in the event that
Special Metals SARL cannot make that payment, other mutually agreeable
means of making that payment shall be reached between the parties. (The
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$5,350 per month and the monthly installment of FF is hereafter
referred to as "Managerial Fees.")
5. EXECUTIVE shall not receive One Thousand Dollars ($1,000.00) for each
regularly scheduled meeting of the Board of Directors. EXECUTIVE shall
not receive an annual fee of Fourteen Thousand Dollars ($14,000.00) for
serving on the Board of Directors.
6. Payment for EXECUTIVE SERVICES performed hereunder and for associated
travel expenses and subsistence for every month during the period of
this Agreement shall be made within thirty (30) days following receipt,
and acceptance, of an invoice for the said month supported by
appropriate expense documentation.
7. EXECUTIVE shall be eligible to receive a bonus for each calendar year
of his contract which shall be equal to those granted to the most
senior officer of SPECIAL under SPECIAL's Management Incentive Plan and
SPECIAL's Performance Unit Award Plan. Any bonus will be paid within
thirty (30) days of the availability of audited figures for the
particular year. If any of these incentive plans is substituted by a
stock option, stock appreciation or equivalent plan, EXECUTIVE will be
offered the same treatment as the most senior Executive of SPECIAL. His
rights related to those bonuses, incentive plans and their substitutes,
if any, will be in any case, including early termination, the same as
those granted to the most senior officer of SPECIAL.
8. EXECUTIVE is aware that he has in the past and may in the future be
exposed to SPECIAL's confidential information (hereinafter referred to
as "INFORMATION") concerning inventions, technology, development plans,
experimental work and commercial operations. EXECUTIVE shall not
disclose, during or after the period of this Agreement, to anyone other
than SPECIAL's employees with whom EXECUTIVE may be associated in
EXECUTIVE's work for SPECIAL, or other parties whom SPECIAL may
designate, any INFORMATION which EXECUTIVE has or may acquire from
SPECIAL, without first obtaining SPECIAL's written consent to make such
disclosure. EXECUTIVE shall not use, other than in performing EXECUTIVE
SERVICES, any INFORMATION which EXECUTIVE has or may acquire from
SPECIAL without first obtaining SPECIAL's written consent to use such.
9. EXECUTIVE shall not have any obligation of confidentiality to SPECIAL
in respect of:
a) INFORMATION which is now in the public domain, or which, in
the future, enters the public domain through no fault of the
EXECUTIVE (in which event EXECUTIVE's obligation of strict
confidence in respect thereto shall terminate on the date of
entry of the INFORMATION into the public domain). INFORMATION
in a form other than a printed publication or other tangible
form shall not be deemed to be in the public domain.
b) INFORMATION which is disclosed to EXECUTIVE at any time by a
third party having the right to make such disclosure to
EXECUTIVE, and without any obligation of confidentiality on
the part of EXECUTIVE to said third party in respect of said
disclosure.
c) INFORMATION which is released from its confidential status by
the prior written consent of
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SPECIAL.
10. (1) Either party may terminate this Agreement at any time by thirty
(30) days advance written notice to the other. EXECUTIVE's obligations
under paragraphs 8 and 9 will survive the termination of this Agreement
and continue thereafter.
(2) In case of termination by SPECIAL before the end of the contract
without cause (as defined below) or for other reason than death or
disability (as defined below), SPECIAL will provide EXECUTIVE on the
date of termination with a severance payment equal to the sum of the
Managerial Fees which EXECUTIVE would have received up to the end of
the contract, plus the yearly average of the two last annual bonuses
granted to EXECUTIVE multiplied by the number of years remaining up to
the end of the contract for which EXECUTIVE will not have yet received
a bonus, provided, however, that if this early termination is made by
SPECIAL before January 1, 2003, the part of the severance related to
bonus will be calculated as follows:
- IF THE EARLY TERMINATION TAKES PLACE IN 2001:
Bonuses due to the most senior officer for this full calendar year.
- IF THE EARLY TERMINATION TAKES PLACE IN 2002:
Average between the bonuses due to the most senior officer for the full
calendar years 2001 and 2002.
Payment will be within thirty (30) days after the definite approval of
the accounts of SPECIAL for the said year(s).
(3) In case of termination by EXECUTIVE before the end of the contract
and in case of termination by SPECIAL before the end of the contract
for cause or disability, SPECIAL will provide EXECUTIVE or his
representative all amounts accrued but unpaid up to and including the
date of termination, including, without limitation, any pro rata
portion of EXECUTIVE's Managerial Fees, bonus and stock options and the
like remaining unpaid as of the date of termination. EXECUTIVE's rights
to exercise vested options shall be extended for a period of one (1)
year following the termination, notwithstanding any contrary language
in the plan documents.
(4) "Disability" shall mean that due to illness, accident or other
physical or mental incapacity, the Board has in good faith determined
that EXECUTIVE is unable to substantially perform his usual and
customary duties under this Agreement for more than six (6) consecutive
months. During any period that EXECUTIVE fails to perform his duties
hereunder as a result of incapacity due to disability ("Disability
Period"), he shall continue to receive his Managerial Fees.
(5) A termination for "cause" is defined as: (i) willful neglect of
duties hereunder; (ii) conviction for, or entry of a pleading of guilty
or nolo contendre by EXECUTIVE with respect to a felony; (iii)
material, knowing and intentional failure to comply with applicable
laws with respect to the execution of SPECIAL's business operations;
(iv) theft, fraud, embezzlement, dishonesty or similar conduct which
has resulted or is likely to result in material economic damage to
SPECIAL or any of its affiliates or subsidiaries; (v) repeated failure
to perform the directives of SPECIAL's Board of Directors; or (vi)
dependence or addiction to alcohol or use of drugs (except those
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legally prescribed by and administered pursuant to the directions of a
practitioner licensed to do so under the laws of the state or county
of licensure) which in the opinion of SPECIAL's Board of Directors
interferes with EXECUTIVE's ability to perform his assigned duties and
responsibilities. If EXECUTIVE is terminated for cause under
subparagraphs (i), (iii), (v), or (vi), he will be entitled to thirty
(30) days prior written notice and the opportunity to cure, and if, in
SPECIAL's reasonable discretion, he has not cured the cause for his
termination within that time, SPECIAL shall have the right to declare
this contract terminated.
11. This Agreement will be governed and construed in accordance with the
laws of the State of New York.
12. This agreement constitutes the entire agreement between the parties
with regard to the subject matter hereof, superseding all prior
understandings and agreements, whether written or oral. None of
SPECIAL's employee handbooks, manuals, or policy statements shall
explicitly or implicitly create any additional rights or obligations
with respect to EXECUTIVE's retention pursuant to this Agreement,
except as otherwise explicitly provided herein. This Agreement may not
be amended, modified or revised except by a writing signed by the
parties hereto.
13. This Agreement is binding upon and inures to the benefit of both
parties and their respective heirs, beneficiaries, executors, trustees,
administrators, successors and assigns, including any corporation with
which SPECIAL may be merged or which may succeed to its assets or
business, although EXECUTIVE's obligations are personal and may be
performed only by EXECUTIVE.
14. The provisions of this Agreement are severable, and invalidity of any
provision does not affect the validity of any other provision.
15. No delay or omission by SPECIAL in exercising any right under this
Agreement (including without limitation, any failure to strictly
enforce any provision hereof) shall operate as a waiver of that or any
other right. A waiver or consent given by SPECIAL on any one occasion
shall be effective only in that instance and shall not be construed as
a bar or waiver of any right on any other occasion.
16. EXECUTIVE hereby acknowledges that he has read this Agreement
carefully; he has been afforded sufficient time to understand the terms
and effects of this Agreement; he has been given the opportunity to
consult with counsel and in fact has been advised by counsel as to all
terms and effects of this Agreement prior to executing this Agreement,
or has knowingly, freely and voluntarily declined to do so; any
ambiguity that might be alleged to exist herein shall not be construed
against or in favor of any party hereto; he is voluntarily entering
into and executing this Agreement; neither SPECIAL nor its agents or
representatives have made any representation inconsistent with the
terms and effects of this Agreement; no promise, inducement, or
agreement not expressed herein has been made to him; and he fully
understands and voluntarily accepts the terms and conditions of this
Agreement.
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If this Agreement is acceptable to you, please execute both copies of this
letter in the space provided below, have your signature attested and return one
fully executed Agreement to us.
Very truly yours,
SPECIAL METALS CORPORATION
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Secretary on behalf of the Board of Directors
Accepted and agreed to this 12th day of July, 2001.
Attested to: XXXXXXXX XXXXXXX DE JANVRY
/s/ Xxxxxxxx XxXxxxxx /s/ Xxxxxxxx Xxxxxxx de Janvry
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