EXHIBIT 10.1
November 13, 2002
Xx. Xxxx Xxxxxx
METAL MANAGEMENT - NORTHEAST
P.O. Box 5158
Newark, NJ 07105
Dear Xx. Xxxxxx:
We are pleased to offer you employment as the President of Metal
Management Northeast (referred to as the "Employee"). This letter is to outline
the material terms of your employment (the Agreement) with Metal Management
Northeast (referred to as the "Company").
1. Compensation. Your annual salary ("Salary") will be $275,000.00,
payable in accordance with the Employer's normal payroll practices
including annual reviews and compensation adjustment per the companies'
review procedures. You will be eligible for an annual bonus as agreed
upon by you and the Company.
2. Term of Employment. Subject to the terms and conditions of this
Agreement, this Agreement shall be effective commencing on the date
hereof, and shall continue in effect until June 7, 2004 (including any
Successive Term as defined below), the "Term". Unless either party
gives written notice of an intention not to renew on or before the date
which is ninety (90) days before the scheduled expiration date of the
Term, the Term of this Agreement shall automatically be extended for
successive one-year terms (each a "Successive Term").
3. Benefits. You will be eligible to participate in such retirement and
profit sharing plans, welfare benefit plans, vacations and fringe
benefit plans maintained from time to time by the Employee for the
general benefit of similarly situated salaried employees of the
Employee upon the terms and conditions contained in such plans. Such
fringe benefit plan currently includes term life insurance in an amount
equal to one year's annual base salary up to a maximum of $100,000.
Additional benefits shall include:
A Company Automobile
Three (3) weeks Vacation per year
4. Severance. In the event that your employment with the Employer is
terminated by the Employer other that "For Cause" as defined below, you
will be entitled, in lieu of any salary or other benefits due
hereunder, to severance pay by continuing payment of your Salary (as in
effect on your date of termination) through the Employer's existing
payroll practices for twelve (12) months following your termination. If
your employment with the Employer is terminated "For Cause" or
due to your voluntary resignation, death or disability, you will not be
entitled to severance pay or other severance benefits.
5. Early Termination of the Agreement.
a) By the Employee for Good Reason. The Employee shall have the
right to terminate this Agreement prior to the expiration of
the Term for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the willful and continued failure by the
Employer to substantially perform its material obligations
hereunder after a demand for substantial performance is
delivered by the Employee to the Employer that specifically
identifies the manner in which the Employee believes that the
Employer has not substantially performed its material
obligations hereunder, and the Employer fails to resume
substantial performance of its material obligations on a
continuous basis within fourteen (14) days of receiving such
demand, provided that if it is not reasonably possible for the
Employer to resume such substantial performance within such
fourteen (14) day time period, then such time period shall be
extended to that minimum period of time during which is
reasonably possible for the Employer to resume such substantial
performance.
b) By the Employer for Good Cause. The Employer may terminate this
Agreement prior to the expiration of the Term "For Cause". For
purposes of this Agreement, "For Cause" shall include, but is
not limited to, the following circumstance:
i. the Employee knowingly participates or
engages in any act of fraud, embezzlement,
or theft or;
ii. the Employee intentionally damages any
material property of the Employee or acts
in any material manner in direct and open
conflict with the best interests of the
Employee or;
iii. the Employee is convicted of a felony or
any other crime involving an act of
dishonesty or breach of trust or;
iv. the Employee fails to perform the duties
assigned to him within the reasonable
capacity of his abilities to perform such
duties or is negligent in the performance
of such duties and when notified of such
breach which is in his reasonable capacity
to cure, fails to cure such breach within
(14) fourteen days after receiving such
demand or;
v. the Employee materially breaches any of the
provisions of this Agreement or the
Confidentiality and Non-Competition
Agreement executed by the Employee
concurrently herewith, and when notified of
such breach, which is in his reasonable
capacity to cure, fails to cure such breach
within (14) fourteen days after receiving
such demand.
6. Jurisdiction of Disputes; Waiver Jury Trial. In the event any party to
this Agreement commences any litigation, proceeding or other legal
action in connection with or relating to this Agreement, the parties to
this Agreement hereby agree to institute any litigation, proceeding or
other legal action, and to submit to personal jurisdiction and service
of process in a court of competent jurisdiction located within the city
of Newark, State of New Jersey whether a state or federal court. Each
party hereto waives the right to a trial by jury in any dispute in
connection with or relating to this Agreement.
7. Waiver of Breach. The waiver by a party of any breach of a provision of
this Agreement by the other party shall not operate or be construed as
a waiver of any subsequent breach thereby.
8. Employee's Sole Remedy. The Employee expressly acknowledges and agrees
that his or her sole remedy for breach of this Agreement by the
Employer shall be limited to recovery of Salary, bonus, and benefits.
9. Terms Confidentiality. The terms of this Agreement shall remain
confidential and neither party shall disclose such terms to any third
party unless required by law or judicial process, or the reporting
obligations of the Company or its parent under applicable securities
laws. The foregoing shall not preclude the company or you from
disclosing the terms of this Agreement to tax and accounting advisers.
Either party may disclose the terms hereof in the event of a breach by
the other party.
10. Confidentiality and Non-Competition Agreement. As part of your
employment, you will have access to confidential information of the
Employer. To protect this information, you will be required, as a
condition of your employment, to sign a Non-Competition and
Confidentiality Agreement. The Employer's standard agreement is
attached.
If you agree with the foregoing, please sign, date and return a copy of this
letter and a copy of the attached Confidentiality and Non-Competition Agreement
to me. If you have any questions, please call me. We look forward to working
with you
Sincerely Yours,
FOR: METAL MANAGEMENT, INC.
By: /s/ Xxxxxx Xxxxx /s/ Xxxx Xxxxxx
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Xxxxxx Xxxxx Xxxx Xxxxxx
CEO Employee
2/12/03
----------------------------
Date
Confidentiality and Non-Competition Agreement
This agreement is made as of this 15th day of November, 2002 by and between
Metal Management, Inc. (the "Employer") and Xxxx Xxxxxx (the "Employee").
WHEREAS, the Employee is an employee of the Employer.
WHEREAS, during the course of his or her employment with the Employer, the
Employee will have access to confidential and propriety information of the
Employer, the disclosure of which would be materially damaging to the Employer,
and
WHEREAS, as a condition of the Employee's employment with the Employer and the
grant of stock options to such Employee, the Employee is required to enter into
a non-competition agreement with the Employer..
NOW, THEREFORE, the Employer and the Employee hereby agree as follows:
1. Trade Secrets. The Employee acknowledges that the Employee has
knowledge of and access to information of a confidential or propriety
nature concerning the business and affairs of the Employer and its
affiliates, including without limitations, information relating to
customers, account, referral sources, contract prices, books and
records, sales, confidential methods, processes, techniques,
information and other trade secrets, all of which are hereinafter
collectively referred to as "Trade Secrets". The Employee recognizes
and agrees that the disclosure or improper use of such Trade Secrets
will cause serious and irreparable injury to the Employer.
Accordingly, the Employee hereby further covenants and agrees that
until such Trade Secrets shall become general public knowledge through
no fault of the Employee, the Employee shall not (a) communicate,
disclose or divulge to any person, firm or other party, or use,
directly or indirectly, for his or her benefit or the benefit of
others, any Trade Secrets which the Employee may know now or hereafter
come to know, or (b) except as required in the normal course of the
employment of the Employee, copy, remove from the premises of the
Employer or retain, without the prior written consent of the Employer,
any written Trade Secrets (or Trade Secrets that are capable of being
reduced to written form, including, but not limited to, Trade Secrets
stored in electronic form), including, but not limited to, financial
data, customer lists, pricing schedules or information, memoranda or
copies or extracts of any of the foregoing. Upon termination of the
Employee's employment with the Employer, the Employee shall deliver to
the Employer all Trade Secrets and other confidential information then
in the Employee's possession or under the Employee's control.
2. Proprietary Matters. The Employee hereby covenants and agrees that (a)
so long as the Employee is employed by the Employer and its
affiliates, the Employee shall keep the Employer informed of any and
all discoveries, improvements, trade secrets, secret processes and
other know-how (all of which are hereinafter collectively referred to
as "Proprietary Items") made or developed by the Employee, in whole or
in part, or conceived of by the Employee, alone or with others, which
result from any work the Employee may do for or at the request of the
Employer, or which relate to the business, operations or activities of
the Employer or any present or future affiliate of the Employer, and
(b) during the course of the Employee's employment and thereafter, the
Employee shall disclose in writing promptly to such persons as the
Employer may from time to time designate all Proprietary Items that
relate in any way to the business, operations or activities of the
Employer and its affiliates, and that are made or conceived by the
Employee alone or in collaboration with others during the period of
the Employee's employment, whether so made during working hours or
otherwise. The Employee understands that all Proprietary Items shall
become and remain the sole property of the Employer, unless expressly
released in writing by the Employer, and the Employer shall have all
ownership rights in all the Proprietary Items. The Employee agrees to
execute appropriate instruments documenting such ownership rights.
3. Non-Competition. In Addition to any obligation of the Employee under
any other obligation of the Employee under any other agreement with
the Employer, in order to assure that the Employer will realize the
benefits of this Agreement and in consideration of the employment of
the Employee by the Employer, the Employee agrees that he shall not,
while he is employed by the Employer or its affiliates and for a
period of twelve (12) months from the Employee's termination of
employment.
(a) directly or indirectly, 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 within a 250 mile radius of the Statue of Liberty
which is directly or indirectly in competition with the
Company Business (as defined below), 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 paragraph 3.
(b) directly or indirectly (i) induce any person which is a
customer of the Employer or any of its affiliates on the date
of the Employee's
termination of employment to patronize any business directly
or indirectly in competition with the Company Business, (ii)
canvass, solicit or accept from any person that is a customer
of the Employer or any of its affiliates on the date of the
Employee's termination of employment, any such competitive
business, or (iii) request or advise any person that is a
customer of the Company Business on the date of the
Employee's termination of employment to withdraw, curtail, or
cancel any such customer's business with the Employer or any
of its affiliates, or
(c) 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 the Employer or any
affiliate of the Employer on the date of the Employee's
termination of employment or within six months prior to the
date of the Employee's termination of employment, or in any
manner seek to induce any such person to leave his or her
employment.
For purposes of this Agreement, the term "Company Business" shall mean
scrap iron or scrap metal recycling and/or processing conducted by the
Employer or any of its affiliates and any other business that the Employer
or any of its affiliates may be engaged in at the time of the Employee's
termination of employment.
4. Time Fixed as to Restriction. As used in this Agreement, with respect
to the Employee's obligations following termination of employment with
the Employer, the terms "customer, "account", "referral source",
"employee" and "trade secrets" shall mean only the firm, firms, person,
persons, employees, trade secrets and propriety items existing as such
on the termination date of the Employee, or in the case of a customer,
employee, account or referral source, any classification at any time
during the twenty four (24) month period immediately preceding the
Employee's termination of employment. In no event are any of these
items to be construed so as to include any future firm, firms, person
or persons, trade secrets or propriety items arising after the
Employee's termination of employment, unless otherwise included under
the twenty four (24) month provision previously stated.
5. Remedies. The Employee expressly agrees and understands that the remedy
at law for any breach by the Employee of this Agreement will be
inadequate and that the damages flowing from such breach are not
readily susceptible to being measured in monetary terms. Accordingly,
it is acknowledged that upon adequate proof of the Employee's violation
of any legally enforceable provision of this Agreement, the Employer
shall be entitled to immediate injunctive relief and may obtain a
temporary order restraining any threatened or further breach. Nothing
in this Agreement shall be deemed to limit the Employer's remedies at
law or in
equity for any breach by the Employee of any of the provisions of this
Agreement that may be pursued or availed of by the Employer.
6. Time. In the event the Employee shall violate any legally enforceable
provision of this Agreement as to which there is a specific time period
during which the Employee is prohibited from taking certain actions or
from engaging in certain activities, as set forth in such provisions,
then in such event, such violation shall toll the running of such time
period from the date of such violation until such violation shall
cease.
7. Invalidity of Provision. In the event that any term or provision of
this Agreement, including any provisions of Agreement hereof, shall be
declared by any court of competent jurisdiction to be unreasonable or
invalid, any such unreasonable term o provisions shall be modified and
enforceable to the extent deemed reasonable by such court, and any such
invalidity shall not affect any other term or provision of this
Agreement, all of which remaining terms and provisions shall continue
in force and effect.
8. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of New Jersey.
9. Amendment. This Agreement may not be altered, amended or modified,
except in writing signed by each of the parties.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
date first above written
FOR:
METAL MANAGEMENT, INC.
/s/ Xxxxxx Xxxxx /s/ Xxxx Xxxxxx
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Xxxxxx Xxxxx Xxxx Xxxxxx
CEO Employee
2/12/03
------------------------
Date
