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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
AGREEMENT, made and entered into as of the 1st day of June, 1999, by and
between Metallurg Inc., a Delaware corporation (together with its successors
and assigns permitted under this Agreement, the "Company"), and Xxxxxx X. Xxxxx
(the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to enter into an employment agreement (the
"Agreement") embodying the terms of employment between the Executive and the
Company; and
WHEREAS, the Executive desires to enter into the Agreement and to accept
such employment, subject to the terms and provisions of the Agreement;
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 the Executive (individually a
"Party" and together the "Parties") agree as follows:
1. Definitions.
(a) "Base Salary" shall mean the Executive's base salary in
accordance with Section 4 below.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Business Day" shall mean any day other than a Saturday, Sunday
or any other day on which commercial banks in New York, New York are required
or authorized to be closed.
(d) "Cause" shall mean:
(1) the Executive is convicted of (or pleads nolo contendere to)
a felony or a crime of moral turpitude, dishonesty, breach
of trust or unethical business conduct involving the
Company;
(2) the Executive engages in willful misconduct, willful or
gross neglect, fraud, insubordination, misappropriation or
embezzlement to the material and demonstrable detriment of
the Company; or
(3) the Executive breaches in any material respect the terms and
provisions of this Agreement and fails to cure such breach
within 20 days following written notice from the Company
specifying such breach.
(e) "CEO" shall mean the chief executive officer of the Company.
(f) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, including applicable regulations thereunder.
(g) "Competitive Activity" shall mean any activity engaged in by the
Executive, 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 Term of
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Employment. Notwithstanding anything to the contrary in this Section 1(g),
an activity shall not be deemed to be a Competitive Activity (x) solely as a
result of the Executive'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 the Executive 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 the Executive is employed or with which he is
otherwise associated.
(h) "Disability" shall mean a disability as determined under the
Company's long-term disability plans, programs and/or arrangements in effect on
the date such disability first occurs.
(i) "Effective Date" shall mean June 1, 1999.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, including applicable regulations thereunder.
(k) "Good Reason" shall mean the occurrence of any of the following
events:
(l) the material change of the Executive's authority, duties and
responsibilities, or the assignment to the Executive of duties
materially different from the Executive's position or
positions with the Company;
(2) a reduction in Base Salary of the Executive;
(3) the failure by the Company to obtain an agreement in form and
substance reasonably satisfactory to the Executive from any
successor to the business of the Company to assume and agree
to perform this Agreement; or
(4) the Company breaches in any material respect the terms and
provisions of this Agreement and fails to cure such breach
within 20 days following written notice from the Executive
specifying such breach.
(l) "Subsidiary" of the Company shall mean any corporation of which the
Company owns, directly or indirectly, more than 50 percent of the Voting Stock
or any other business entity in which the Company directly or indirectly has an
ownership interest of more than 50 percent.
(m) "Term of Employment" shall mean the period specified in Section 2
below.
(n) "Voting Stock" shall mean capital stock of any class or classes
having general voting power under ordinary circumstances, in the absence of
contingencies, to elect the directors of a corporation.
2. Term of Employment.
The Company hereby employs the Executive, and the Executive hereby
accepts such employment, for the period commencing on the Effective Date and
ending on the first anniversary of the Effective Date (the "Term of
Employment"), subject to earlier termination of the Term of Employment in
accordance with the terms of the Agreement. The Term of Employment shall be
automatically renewed for a two-year period on the first anniversary of the
Effective Date and thereafter, the Term of Employment shall be automatically
renewed for a one-year period on each anniversary of the Effective Date
thereafter, unless, in each case, either Party has notified the other Party in
writing in accordance
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with Section 26 below at least 90 days prior to the expiration of the then Term
of Employment that he or it does not want the Term of Employment to so renew.
3. Position, Duties and Responsibilities.
The Executive, in his capacity as Vice President, Group Strategic
Development of the Company shall faithfully perform for the Company the duties
of said office and shall perform such other duties of an executive, managerial
or administrative nature as shall be specified and designated from time to time
by the CEO consistent with such office. The Executive shall devote substantially
all of his business time and effort to the performance of his duties hereunder.
The Executive, in carrying out his duties under this Agreement, shall report to
the CEO. Notwithstanding anything in this Section 3 to the contrary, nothing
shall preclude the Executive from:
(1) serving on the boards of directors of a reasonable number of
other corporations or the boards of a reasonable number of
trade associations and/or charitable organizations;
(2) engaging in charitable activities and community affairs; and
(3) managing his personal investments and affairs;
provided, however, that such activities do not materially interfere with the
proper performance of his duties and responsibilities hereunder.
4. Base Salary.
During the Term of Employment, the Executive shall be paid an annual
Base Salary, payable in accordance with the regular payroll practices of the
Company, of $220,000. The Base Salary may be increased (but not decreased) at
any time and from time to time by action of the Board or by any committee
thereof or any individual having authority to take such action in accordance
with the Company's regular practices. Once increased, any reference to Base
Salary herein shall be a reference to such increased amount.
5. Bonus.
During the Term of Employment, in addition to Base Salary, for each
fiscal year of the Company ending during the Term of Employment, the Executive
shall have the opportunity to receive an annual bonus (an "Annual Bonus") in an
amount of between 30 and 50 percent of Base Salary, as determined by the CEO, in
consultation with the Chairman of the Board. Payment of Annual Bonus shall be
made at the same time that other senior-level executives receive their annual
incentive compensation awards.
6. Long-Term Incentive Compensation Programs.
The Executive shall be eligible to participate in the Company's stock
option plans applicable to senior-level executives, the terms, conditions and
eligibility of such plans to be determined by the Board.
7. [Intentionally omitted]
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8. Employee Benefit Programs.
(a) During the Term of Employment, the Executive, to the extent he
is eligible, shall be entitled to participate in those employee pension and
welfare benefit plans, programs and/or arrangements applicable to the Executive
and made available to the Company's senior-level executives or to its
employees generally, as such plans, programs and/or arrangements may be in
effect from time to time, including, without limitation, pension,
profit-sharing, savings, medical, dental, hospitalization, short-term
disability, long-term disability, life insurance, accidental death and
dismemberment protection, travel accident insurance, and other employee pension
and welfare benefit plans, programs and/or arrangements that may be sponsored
by the Company from time to time.
(b) During the Term of Employment, the Company shall provide the
Executive with term life insurance with a death benefit of at least two times
Base Salary. The Company shall pay all premiums with respect to such life
insurance. Such life insurance may be provided either through the Company's
group life insurance programs, by an individual policy, or by a combination of
both group and individual policies.
9. Reimbursement of Business Expenses.
The Executive is authorized to incur ordinary and reasonable business
expenses in carrying out his duties and responsibilities under the Agreement,
and the Company shall reimburse him for all such ordinary and reasonable
business expenses incurred in connection with carrying out the business of the
Company, subject to documentation in accordance with the Company's policy.
10. Perquisites.
(a) During the Term of Employment, the Executive shall be entitled to
participate in the Company's executive fringe benefits applicable to the
Company's senior-level executive in accordance with the terms and conditions of
such arrangements as are in effect from time to time.
(b) During the Term of Employment, the Company shall provide a car
to the Executive.
11. Vacation.
The Executive shall be entitled to paid vacation in accordance with
the Company's vacation policy, provided, however, that the Executive shall be
entitled to not less than four weeks of vacation each year.
12. Termination of Employment.
(a) Termination of Employment Due to Death. In the event of the
Executive's death during the Term of Employment, the Term of Employment shall
end as of the date of the Executive's death and his estate and/or
beneficiaries, as the case may be, shall be entitled to the following:
(1) Base Salary earned but not paid prior to the date of his
death;
(2) Annual Bonus with respect to any year prior to the year of
his death which has been earned but not paid;
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(3) any amounts earned, accrued or owing to the Executive but not yet
paid under Section 6, 8, 9, 10 or 11 above; and
(4) other or additional benefits in accordance with applicable plans,
programs and/or arrangements of the Company.
(b) Termination of Employment Due to Disability. If the Executive's
employment is terminated due to Disability during the Term of Employment,
either by the Company or by the Executive, the Term of Employment shall end as
of the date of the Executive's termination of employment and the Executive
shall be entitled to the following (but in no event shall the Executive be
entitled to less than the benefits due him under any disability program of the
Company for which he becomes eligible):
(1) Base Salary earned but not paid prior to the date of the
termination of the Executive's employment;
(2) Annual Bonus with respect to any year prior to the year of the
termination of the Executive's employment which has been earned
but not paid;
(3) an amount equal to the sum of 50 percent of Base Salary, at the
annual rate in effect on the date of the termination of the
Executive's employment, payable in monthly installments for a
period ending on the first day of the month following the month
in which the Executive attains age 65 or recovers from his
Disability, whichever occurs earlier, less the amount of any
disability benefits provided to the Executive under the Company's
disability program;
(4) any amounts earned, accrued or owing to the Executive but not yet
paid under Section 6, 8, 9, 10 or 11 above;
(5) continued participation, as if the Executive were still an
employee, in the Company's medical, dental, hospitalization and
life insurance plans, programs and/or arrangements and in those
other employee plans, programs and/or arrangements in which he
was participating on the date of the termination of his
employment until he attains age 65 or recovers from his
Disability, whichever occurs earlier;
provided, however, that:
(X) if the Executive is precluded from continuing his
participation in any employee benefit plan, program or
arrangement as provided in this Section 12(b)(5), he shall
be provided with the after-tax economic equivalent of the
benefits provided under the plan, program or arrangement in
which he is unable to participate for the period specified
in this Section 12(b)(5); and
(Y) the economic equivalent of any benefit foregone shall be
deemed to be the lowest cost that would be incurred by the
Executive in obtaining such benefit himself on an individual
basis; and
(6) other or additional benefits in accordance with applicable plans,
programs and/or arrangements of the Company.
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In no event shall a termination of the Executive's employment for
Disability occur unless the Party terminating his employment gives written
notice to the other Party in accordance with Section 26 below.
(c) Termination of Employment by the Company for Cause. A
termination of the Executive's employment by the Company for Cause shall not
take effect unless the provisions of this Section 12(c) are complied with and
the Board issues a written determination that the Executive's employment should
be terminated for Cause (a "Determination").
(1) In accordance with Section 26 below, the CEO shall give
the Executive a written notice stating his intention to
terminate the Executive's employment for Cause (the
"Cause Notice"). The Cause Notice shall:
(A) state in detail the particular act or acts or
failure or failures to act that constitute the
grounds on which the proposed termination of
employment for Cause is based; and
(B) be given within four months of the CEO learning of
such act of acts or failure or failures to act.
(2) The CEO may temporarily relieve the Executive of his
duties and responsibilities described in Section 3
above during the period commencing on the date the
Cause Notice is issued by the CEO and ending on the
date the Determination is issued by the Board (the
"Determination Period").
(3) The Executive shall have 20 days after the date the
Cause Notice is actually received by him in which to
cure his conduct on which the termination of employment
for Cause is based, to the extent such cure is
possible. If the Executive fails to cure such conduct,
he shall then be entitled to a hearing before the
Board. Such hearing shall be held during the 20-day
period following the date the Executive receives the
Cause Notice; provided, however, that the Executive
requests such hearing during the 10-day period
following the date the Executive receives the Cause
Notice. Within five days following the completion of
such hearing, the Board shall issue a Determination
stating whether, in its judgment, grounds for Cause as
detailed in the Cause Notice exist. If the
Determination states that such grounds exist, the
Executive's employment shall be immediately terminated
for Cause and the Term of Employment shall end as of
the date of the termination of the Executive's
employment.
(4) If the Company terminates the Executive's employment
for Cause, the Executive shall be entitled to the
following:
(A) Base Salary earned but not paid prior to the date
of the termination of his employment;
(B) any amounts earned, accrued or owing to the
Executive but not yet paid under Section 6, 8, 9,
10 or 11 above; and
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(C) other or additional benefits in accordance with
applicable plans, programs and/or arrangements of the
Company.
(5) Notwithstanding anything herein to the contrary, if,
following a termination of the Executive's employment by the
Company for Cause based upon the conviction of the Executive
for a felony, such conviction is overturned in a final
determination on appeal, the Executive shall be entitled to
the payments and the economic equivalent of the benefits the
Executive would have received if his employment had been
terminated by the Company without Cause.
(d) Termination of Employment by the Company Without Cause. If the
Executive's employment is terminated by the Company without Cause, other than
due to death or Disability, the Executive shall be entitled to the following:
(1) Base Salary earned but not paid prior to the date of the
termination of his employment;
(2) Annual Bonus with respect to any year prior to the year of
the termination of the Executive's employment which has been
earned but not paid;
(3) an amount equal to the aggregate Base Salary (based on the
Base Salary in effect on the date of the termination of the
Executive's employment)(the "Salary Continuation Benefits")
with respect to a period equal to eighteen months, payable in
equal monthly installments over such period;
(4) continued accrual of credited service through a period ending
on that date that would have been the end of the Term of
Employment for the purpose of any Company pension plan,
program or arrangement;
(5) the right to purchase, at fair market value, the Executive's
automobile (if any) provided to him by the Company under the
Company's automobile perquisite program for senior-level
executives; however, other than the foregoing, all rights to
continue to participate in such program shall terminate on
the date of termination of employment;
(6) any amounts earned, accrued or owing to the Executive but not
yet paid under Section 6, 8, 9, 10 or 11 above;
(7) continued participation, as if he were still an employee, in
the Company's medical, dental, hospitalization and life
insurance plans, programs and/or arrangements and in other
employee benefit plans, programs and/or arrangements
(excluding long-term disability programs) in which he was
participating on the date of the termination of his
employment until the earlier of:
(A) the end of the period used to determine the Salary
Continuation Benefits; or
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(B) the date, or dates, he receives equivalent coverage and
benefits under the plans, programs and/or arrangements
of a subsequent employer (such coverage and benefits to
be determined on a coverage-by-coverage or
benefit-by-benefit basis);
provided, however, that:
(X) if the Executive is precluded from continuing his
participation in any employee benefit plan, program or
arrangement as provided in Section 12(d)(7) above, he
shall be provided with the after-tax economic
equivalent of the benefits provided under the plan,
program or arrangement in which he is unable to
participate for the period specified in this Section
12(d)(7); and
(Y) the economic equivalent of any benefit foregone shall
be deemed to be the lowest cost that would be incurred
by the Executive in obtaining such benefit himself on
an individual basis; and
(8) other or additional benefits in accordance with applicable
plans, programs and/or other arrangements of the Company.
(e) Termination of Employment by the Executive for Good Reason. The
Executive may terminate his employment for Good Reason, but only if:
(1) the Executive notifies the Board during the 60-day period
following the date of the first occurrence of an event which
constitutes Good Reason (the "Good Reason Event Date") of
his intention to terminate his employment for Good Reason;
(2) the Executive terminates his employment for Good Reason
during the 120-day period following the Good Reason Event
Date;
(3) the termination of employment for Good Reason does not occur
during a Determination Period described in Section 12(c)(2)
above; and
(4) the Good Reason first occurs before or after a Determination
Period, or, if the Good Reason first occurs during a
Determination Period, such event constituting Good Reason
continues to occur after the Determination Period.
Upon a termination by the Executive of his employment for Good Reason, the
Executive shall be entitled to the same payments and benefits as provided in
Section 12(d) above; provided, however, that if the Executive terminates his
employment for Good Reason based on a reduction in Base Salary under Section
1(k)(2) above, then the Base Salary to be used in determining the Salary
Continuation Benefits in accordance with Section 12(d)(3) above shall be the
Base Salary in effect immediately prior to such reduction.
(f) Termination of Employment by the Executive Without Good Reason.
If the Executive terminates his employment without Good Reason, other than a
termination of employment due to death or retirement or Disability, the
Executive shall have the same entitlements as provided in Section 12(c)(4)
above. A termination of the Executive's employment under this Section 12(f)
shall be effective upon 30 days prior written notice to the Company and shall
not be deemed a breach of this Agreement.
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(g) Non Renewal of Agreement by Company. If the Company notifies the
Executive, pursuant to Section 2 above, that is does not want the Term of
Employment to renew, the Executive shall have the same entitlements as provided
in Section 12(d) above as if the Executive had been terminated without cause as
of the last day of the then Term of Employment.
(f) Termination of Employment by Executive due to Relocation of Work
Location. In the event that the Executive's principal work location is moved
outside of the States of New York, New Jersey, Connecticut, Pennsylvania,
Delaware, Maryland or the District of Columbia, the Executive may terminate his
employment with the Company. If the Executive terminates his employment pursuant
to this Section 12(h), he shall have the same entitlements as provided in
Section 12(d) above; provided that all such benefits, including, without
limitation, the Salary Continuation Benefits, shall be provided for a period
equal to the corresponding severance period listed on Schedule A, attached
hereto and made a part hereof, payable in equal monthly installments during such
period.
(i) No Mitigation; No Offset. If the Executive's employment
terminates under this Section 12, the Executive shall be under no obligation to
seek other employment and there shall be no offset against amounts due the
Executive under this Agreement on account of any remuneration attributable to
any subsequent employment that he may obtain except as specifically provided in
this Section 12.
(j) Nature of Payments. Any amounts due under this Section 12 are in
the nature of severance payments considered to be reasonable by the Company and
are not in the nature of a penalty.
13. Confidentiality; Assignment of Rights.
(a) During the Term of Employment and thereafter, the Executive shall
not disclose to anyone or make use of any trade secret or proprietary or
confidential information of the Company, including such trade secret or
proprietary or confidential information or any customer or other entity to which
the Company owes an obligation not to disclose such information, which he
acquires during the Term of Employment, 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 an employee of the
Company, (ii) when required to do so by a court of law, by any governmental
agency 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 13(a).
(b) The Executive hereby sells, assigns and transfers to the Company
all of his right, title and interest in and to all inventions, discoveries,
improvements and copyrightable subject matter (the "rights") which during the
Term of Employment are made or conceived by him, alone or with others, and which
are within or arise out of any general field of the Company's business or arise
out of any work he performs or information he receives regarding the business of
the Company while employed by the Company. The Executive shall fully disclose to
the Company as promptly as available all information known or possessed by him
concerning the rights referred to in the preceding sentence, and upon request by
the Company and without any further remuneration in any form to him by the
Company, but at the expense of the Company, execute all applications for patents
and for copyright registration, assignments thereof and other instruments and do
all things which the Company may deem necessary to vest and maintain in it the
entire right, title and interest in and to all such rights.
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14. Noncompetition.
(a) The Executive covenants and agrees that during the Term of
Employment and following the termination of the Executive's employment with the
Company, for a period of eighteen months or, in the case of a termination
pursuant to Section 12(h), a period equal to the shorter of (i) twice the
corresponding severance period listed on Schedule A and (ii) eighteen months, he
shall not at any time, without the prior written consent of the Company,
directly or indirectly, engage in a Competitive Activity.
(b) The Parties acknowledge that in the event of a breach or
threatened breach of Section 14(a) above, the Company shall not have an adequate
remedy at law. Accordingly, in the event of any breach or threatened breach of
Section 14(a) above, the Company shall be entitled to such equitable and
injunctive relief as may be available to restrain the Executive and any
business, firm, partnership, individual, corporation or entity participating in
the breach or threatened breach from the violation of the provisions of Section
14(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 14(a) above, including the recovery of
damages.
15. Indemnification.
(a) The Company agrees that if the Executive is made a party, or is
threatened to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he is or was a director, officer or employee of the Company or is or
was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is the Executive's alleged action in
an official capacity while serving as a director, officer, member, employee or
agent, the Executive shall be indemnified and held harmless by the Company to
the fullest extent legally permitted or authorized by the Company's certificate
of incorporation or bylaws or resolutions of the Company's Board of Directors
or, if greater, by the laws of the State of Delaware, against all cost, expense,
liability and loss (including without limitation, attorney's fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by the Executive in connection
therewith, and such indemnification shall continue as to the Executive even if
he has ceased to be a director, member, employee or agent of the Company or
other entity and shall inure to the benefit of the Executive's heirs, executors
and administrators. The Company shall advance to the Executive all reasonable
costs and expenses incurred by him in connection with a Proceeding within 20
days after receipt by the Company of a written request for such advance. Such
request shall include an undertaking by the Executive to repay the amount of
such advance if it shall ultimately be determined that he is not entitled to be
indemnified against such costs and expenses.
(b) Neither the failure of the Company (including the Board,
independent legal counsel or stockholders) to have made a determination prior to
the commencement of any Proceeding concerning payment of amounts claimed by the
Executive under Section 15(a) above that indemnification of the Executive is
proper because he has met the applicable standard of conduct, nor a
determination by the Company (including the Board, independent legal counsel or
stockholders) that the Executive has not met such applicable standard of
conduct, shall create a presumption that the Executive has not met the
applicable standard of conduct.
(c) The Company agrees to continue and maintain a directors and
officers' liability insurance policy covering the Executive to the extent the
Company provides such coverage for its other executive officers.
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16. Effect of Agreement on Other Benefits.
Except as specifically provided in this Agreement, the existence of
this Agreement shall not prohibit or restrict the Executive's entitlement to
full participation in the Company's employee benefit plans, programs and
arrangements applicable to the Company's senior-level executives.
17. Assignability; Binding Nature.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of the Executive)
and assigns. No rights or obligations of the Company under this Agreement may be
assigned or transferred by the Company except that such rights or obligations
may be assigned or transferred pursuant to a merger or consolidation in which
the Company is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of the Company; provided, however, that the
assignee or transferee is the successor to all or substantially all of the
assets of the Company and such assignee or transferee assumes the liabilities,
obligations and duties of the Company, as contained in this Agreement, either
contractually or as a matter of law. The Company further agrees that, in the
event of a sale of assets or liquidation as described in the preceding sentence,
it shall take whatever action it legally can in order to cause such assignee or
transferee to expressly assume the liabilities, obligations and duties of the
Company hereunder or under any other plan or benefit program referred to herein.
No rights or obligations of the Executive under this Agreement may be assigned
or transferred by the Executive other than his rights to compensation and
benefits, which may be transferred only by will or operation of law, except as
provided in Section 23 below.
18. Representation.
The Company represents and warrants that it is fully authorized and
empowered to enter into this Agreement and that the performance of its
obligations under this Agreement will not violate any agreement between it and
any other person, firm or organization. The Executive represents that he knows
of no agreement between him and any other person, firm or organization that
would be violated by the performance of his obligations under this Agreement.
19. Entire Agreement.
This Agreement contains the entire understanding and agreement between
the Parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the Parties, including, without limitation, the
Existing Employment Agreement, with respect thereto.
20. Amendment or Waiver.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by the Executive and an authorized officer of
the Company. No waiver by either Party of any breach by the other Party of any
condition or provision contained in this Agreement to be performed by such other
Party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time. Any waiver must be in writing and
signed by the Executive or an authorized officer of the Company, as the case may
be.
21. 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
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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.
22. Survivorship.
The respective rights and obligations of the Parties hereunder shall
survive any termination of the Executive's employment to the extent necessary
to the intended preservation of such rights and obligations.
23. Beneficiaries/References.
The Executive shall be entitled, to the extent permitted under any
applicable law, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Executive's death
by giving the Company written notice thereof. In the event of the Executive's
death or a judicial determination of his incompetence, reference in this
Agreement to the Executive shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
24. Governing Law/Submission to Jurisdiction.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of New York without reference to principles of conflict
of laws. Each of the Company and the Executive hereby irrevocably and
unconditionally: (i) submits for itself or himself, as applicable, and its or
his property in any legal action or proceeding relating to this Agreement, or
for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof; (ii) consents that any such action or
proceeding may be brought in such courts, and waives any objection that it or he
may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient
forum and agrees not to plead or claim the same; (iii) agrees that service of
process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, at its or his address set forth in or designated
pursuant to section 26 hereof; and (iv) agrees that nothing herein shall affect
the right to effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction.
25. Resolution of Disputes.
Any disputes arising under or in connection with the Agreement, other
than disputes arising in connection with Sections 14 or 15 hereof, may, at the
election of the Executive 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, the Executive and
the Company shall mutually select the arbitrator. If the Executive 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; provided, however, that,
if a dispute is resolved in favor of the Company, the Executive shall bear his
own costs of the arbitration or litigation and shall reimburse the Company for
the Executive's costs of the arbitration or litigation previously paid by the
Company. Pending the resolution of any arbitration or court proceeding, the
Company shall continue payment of all amounts due the Executive under this
Agreement and all benefits to which the Executive is entitled at the time the
dispute arises.
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26. NOTICES.
Any notice given to a Party shall be in writing and shall be deemed
to have been given when delivered personally or sent by certified or registered
mail, postage prepaid, return receipt requested, duly addressed to the Party
concerned at the address indicated below or to such changed address as such
Party may subsequently give such notice of:
If to the Company: Metallurg, Inc.
0 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Executive: Xxxxxx X. Xxxxx
c/o Metallurg, Inc.
0 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
27. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
28. COUNTERPARTS.
This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
METALLURG, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
AGREED AND ACCEPTED
/s/ Xxxxxx X. Xxxxx
----------------------
Xxxxxx X. Xxxxx
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SCHEDULE A
Years of Service Severance Period
---------------- ----------------
Up To 15 6 months
More Than 15 9 months
More Than 20 12 months
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