AMERICAN METALS SERVICE, INC.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
May 17, 1999
Xx. Xxxxxx X. Xxx Xxxxxxxx
P.O. Box 000
0 Xxxxxxxx Xxxxx #0
Xxxxxx, Xxx Xxxxxx 00000
Re: Terms of Employment
Dear Xxx:
This Letter (this "Letter"), when countersigned by you (the
"Employee"), will constitute our agreement with respect to your employment with
American Metals Service, Inc., a Florida corporation (the "Company").
1. Term. The initial term of employment hereunder (the "Term") will
commence on the date hereof and will continue until the first
anniversary thereof, unless sooner terminated as hereinafter provided.
On the expiration of such one-year period and on each yearly
anniversary thereafter, this Agreement shall automatically renew for an
additional one-year period, unless the Company or the Employee notify
the other party in writing of its or his intention not to renew this
Agreement at least thirty (30) days prior to the expiration of the then
current Term or unless sooner terminated as hereinafter provided.
2. Duties and Extent of Services. During the Term, the Employee will
serve as President and Director of the Company. The Employee will be in
charge of and responsible for all of the duties associated with said
position and will perform such other services consistent with such
position as may from time to time be reasonably assigned to the
Employee by the Board of Directors and/or the officers of the Company.
The Employee will devote substantially all of his business time, energy
and skill to such employment and to promoting the best interests of the
Company.
3. Compensation. The Company will pay and the Employee shall accept
from the Company, base compensation at the rate of $90,000 per annum,
payable in accordance with the Company's customary payroll policy as in
effect from time to time (such salary, as in effect from time to time,
the "Base Salary"). The Company may withhold such amounts as are
necessary to comply with federal, state and local withholding laws.
4. Expenses. During the Term, the Company shall pay or reimburse the
Employee for all reasonable and itemized business expenses incurred by
the Employee while conducting or furthering the business of the
Company. The Employee shall keep appropriate records of such expenses
and submit receipts or other evidence relating to them in accordance
with Company policy. Reimbursement for such expenses shall be subject
to such regulations and procedures as the Company may designate by
notice to the Employee.
5. Benefits. The Employee will be entitled to participate in all group
plans or programs, and to receive all benefits and perquisites for
which employees of the Company are eligible under any benefit plans,
now or hereafter established by the Company and maintained by the
Company, to the extent permissible under the general provisions of such
plans or programs.
6. Vacation. The Employee will be entitled to two weeks of annual paid
vacation. The time at which the Employee will be absent from the office
shall be at the Employee's sole discretion, provided such time is
compatible with the vacation and work schedule of other employees.
7. Termination. (a) If, during the Term, the Employee is unable to
perform the duties required of him pursuant to this Letter due to any
physical or mental disability for a period of six months in any 12
consecutive months, the Company shall have the right to terminate the
Employee by giving him not less than thirty (30) days prior written
notice, at the end of which time, if such disability has continued, the
Employee shall be terminated. The Employee shall retain his status and
shall continue to receive full compensation hereunder during the period
prior to any termination because of such disability. As used herein,
the term "disability" shall mean the inability of the Employee to
perform his duties hereunder by reason of a non-self inflicted medical
disability, including mental or physical illness, as certified by a
physician or specialist appointed by the Company in its reasonable
judgment.
7. (b) The Company shall have the right to terminate the
Employee for "Cause". For purposes of this Agreement,
"Cause" shall mean (i) the Employee's gross neglect,
incompetence or willful misconduct in the performance of his
duties for the Company, (ii) conviction of or plea of guilty
(without any right of appeal) to any felony involving a
business crime (e.g., embezzlement), and (iii) the
Employee's material breach of any provision of this Letter.
8. Employment Inducement. The Employee shall not, during the Term and
for a period of one year thereafter, in any manner, directly or
indirectly, induce or attempt to influence any present or future
employee of the Company or any entity that controls, is controlled by,
or is under common control with the Company (an "Affiliate") to leave
the employ of the Company or such Affiliate.
9. Confidentiality. The Employee's duties will give the Employee access
to trade secrets and other confidential or proprietary information of
the Company of a special and unique nature and value to the Company
including, but not limited to, the nature and material terms of the
Company's Websites, financial records of the Company and other
information relating to the Company's present or future operations (all
of the foregoing, whether or not it qualifies as a "trade secret" under
applicable law, is collectively called "Confidential Information"). The
Employee recognizes that the Confidential Information is proprietary to
the Company, and gives it a significant competitive advantage in its
industry. Accordingly, the Employee shall not use or disclose any of
the Confidential Information during or after the Employment Period,
except for the sole and exclusive benefit of the Company. Upon
termination, the Employee shall return to the Company's office all
documents and other tangible embodiments of any Confidential
Information. The Employee agrees that the Company would be irreparably
injured by any breach of this paragraph 9, that such injury would not
be adequately compensable by monetary damages, and that accordingly the
Company may specifically enforce the provisions of this paragraph by
injunction, without affecting any claim for damages. Notwithstanding
anything in this paragraph 9 to the contrary, Confidential Information
shall not include any information that (i) at the time of disclosure is
generally available to and known by the public (other than as a result
of a disclosure made directly or indirectly in violation of this
paragraph 9), (ii) becomes publicly available in the future (other than
as a result of a disclosure made directly or indirectly in violation of
this paragraph 9), (iii) was available to the Employee on a
nonconfidential basis from a source other than the Company (provided
that such source is not or was not bound to maintain the
confidentiality of such information) (iv) has been independently
acquired or developed by the Employee without violating any of its
obligations under this paragraph 9 or (v) the Employee becomes legally
compelled (by deposition, interrogatory, request of documents,
subpoena, xxxxx investigative demand or similar process) to disclose.
(For purposes of this paragraph 9, the "Company" shall mean the Company
and/or its Affiliates.
10. Assignability and Binding Effect. This Letter shall inure to the
benefit of and shall be binding upon the Company and its successors and
permitted assigns and the Employee and his heirs, executors, legal
representatives, successors. The Company may assign this Letter or any
of its rights hereunder to any Affiliate of the Company. The Employee
may not assign, transfer, pledge, encumber, hypothecate or otherwise
dispose of this Letter or any of his rights hereunder and any attempted
assignment, transfer, pledge, encumbrance, hypothecation or other
disposition shall be null and void and without effect.
11. Notices. All communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly
given if (i) delivered personally with receipt acknowledged, (ii) sent
by registered or certified mail, return receipt requested or (iii) sent
by overnight courier for next Business Day delivery, addressed to the
parties at the addresses set forth on the first page hereof or to such
other addresses as any party shall hereafter specify by communication
to the other parties in the manner provided herein. Notice of change of
address shall be deemed given when actually received or upon refusal to
accept delivery thereof; all other communications shall be deemed to
have been given, received and dated on the earlier of (w) when actually
received or upon refusal to accept delivery thereof, (x) on the date
when delivered personally, (y) one Business Day after being sent by
overnight courier and (z) four Business Days after mailing, as
aforesaid.
12. Governing Law. This Letter shall be governed by, and construed
under and in accordance with, the laws of the State of New York without
giving effect to the conflict of laws principles thereof.
Please indicate your agreement to the foregoing by signing and
returning the enclosed copy of this Letter.
AMERICAN METALS SERVICE, INC.
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Xxxx X. Xxxxxxxx, Xx.
Vice President
Agreed to and Accepted:
/s/ Xxxxxx X. Xxx Xxxxxxxx
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Xxxxxx X. Xxx Xxxxxxxx
