EXHIBIT 10.36
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") dated this day of
September, 1997 (the "Effective Date"), by and between Xxxxx Metal
Servicenters, Inc., a Michigan corporation (the "Company") which is a
wholly-owned subsidiary of Metals USA, Inc., a Delaware corporation ("Metals")
and Xxxxxxx Xxxxxxx ("Executive").
R E C I T A L S
A. As of the Effective Date, the Company and the other subsidiaries of
Metals are engaged primarily in the business of providing metals processing,
metals fabrication and specialty metals services, including brokering,
manufacturing and distribution services; and
B. Executive is employed by the Company in a confidential relationship
wherein Executive, in the course of his employment with the Company, has and
will continue to become familiar with and aware of information as to the
Company's and Metals' customers, specific manner of doing business, including
the processes, techniques and trade secrets utilized by the Company and Metals,
and future plans with respect hereto, all of which has been and will be
established and maintained at great expense to the Company and Metals; this
information is a trade secret and constitute the valuable goodwill of the
Company and Metals; and
C. The parties desire to agree to the various matters described herein and
to memorialize those agreements herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, it is hereby agreed as follows:
A G R E E M E N T S
1. EMPLOYMENT AND DUTIES.
(a) The Company hereby employs Executive as President of the Company. As
such, Executive shall have responsibilities, duties and authority reasonably
accorded to, expected of, and consistent with Executive's position and will
report to the Board of Directors of the Company (the "Board"). Executive hereby
accepts this employment upon the terms and conditions herein contained and,
subject to Section 3 hereof, agrees to devote substantially all of his business
time, attention and efforts to promote and further the business of the Company
and Metals.
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(b) Executive shall faithfully adhere to, execute and fulfill all lawful
policies established by the Company, as such policies may be changed from time
to time by the Company.
2. COMPENSATION. For all services rendered by Executive, the Company shall
compensate Executive as follows:
(a) BASE SALARY. As of the Effective Date, the base salary payable to
Executive shall be $150,000 per year, payable on a regular basis in accordance
with the Company's standard payroll procedures but not less than monthly. On at
least an annual basis commencing in 1998, the Board will review Executive's
performance and may make increases to such base salary if, in its discretion,
any such increase is warranted.
(b) BONUS. For the year 1998, Executive shall be entitled to a bonus equal
to that portion of the Bonus Pool (hereinafter defined) allocated to Executive
by the President of the Company. The "Bonus Pool" shall mean an amount equal to
the greater of (i) the aggregate bonus actually earned from the Stockholders'
performance pursuant to the bonus formula to be established by Metals for
calculating bonuses for the Company's four (4) executives ("Formula Bonus") or
(ii) the sum of $150,000 provided, however, that the sum of $150,000 will not be
a part of the Bonus Pool unless the operating profit of the Company for the
calendar year 1998 exceeds $2,100,000. In determining 1998 operating profit, any
charges of Metals or any affiliate thereof for management fees or the like shall
not exceed the annualized 1997 Company headquarters charges. After 1998,
Executive shall only be entitled to the Formula Bonus as determined by the
Company and Metals.
(c) EXECUTIVE PERQUISITES, BENEFITS AND OTHER COMPENSATION. Executive
shall be entitled to receive additional benefits and compensation from the
Company in such form and to such extent as specified below:
(i) Admittance for participation for Executive and Executive's
dependent family members under health, hospitalization, disability,
dental, life and other insurance plans that the Company may have in effect
from time to time, with benefits provided to Executive under this clause
(i) to be at least equal to such benefits provided to Company employees
generally; provided, however, that in no event shall the benefits
described hereunder be reduced below the level of benefits presently
provided to Executive and Executive's dependent family members by the
Company.
(ii) Reimbursement for all business travel and other out-of-pocket
business-related expenses (including golf club expenses) reasonably
incurred by Executive in the performance of his services pursuant to this
Agreement. All reimbursable expenses shall be appropriately documented in
reasonable detail by Executive upon submission of any request for
reimbursement, and in a format and manner consistent with the Company's
expense reporting policy.
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(iii) The Company shall provide Executive with other executive
perquisites as may be available to or deemed appropriate for Executive by
the Board or Metals and participation in all other company-wide employee
benefits as are available from time to time, including but not limited to
any qualified and/or nonqualified retirement plans, bonus plans or stock
option plans that may be sponsored by the Company or Metals for similarly
positioned Executives.
3. NON-COMPETITION AGREEMENT.
(a) Executive shall not, during the term of his employment hereunder, be
engaged in any other business activity pursued for gain, profit or other
pecuniary advantage if such activity interferes or conflicts in any respect with
Executive's duties and responsibilities hereunder. The foregoing limitations
shall not be construed as prohibiting Executive from making personal investments
in such form or manner as will neither require his services in the operation or
affairs of the companies or enterprises in which such investments are made nor
violate the terms of this Section 3. In addition, Executive shall not, during
the period of his employment by or with the Company, and for a period of two (2)
years immediately following the termination of his employment under this
Agreement, for any reason whatsoever, other than a termination by the Company
without cause or by Executive for Good Reason, directly or indirectly, for
himself or on behalf of or in conjunction with any other person, company,
partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales
representative, in any business in direct competition with the Company or
Metals, within 200 miles of where the Company or any of Metals'
subsidiaries conducts business, including any territory serviced by the
Company or Metals or any of such subsidiaries (the "Territory");
(ii) call upon any person who is, at that time, within the
Territory, an employee of the Company or Metals (including the respective
subsidiaries thereof) in a managerial capacity for the purpose or with the
intent of enticing such employee away from or out of the employ of the
Company or Metals (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or
which has been, within one (1) year prior to that time, a customer of the
Company or Metals (including the respective subsidiaries thereof) within
the Territory for the purpose of soliciting or selling products or
services in direct competition with the Company or Metals within the
Territory;
(iv) call upon any prospective acquisition candidate, on Executive's
own behalf or on behalf of any competitor, which candidate was, to
Executive's actual knowledge after due inquiry, either called upon by the
Company or Metals (including the respective subsidiaries thereof) or for
which the Company or Metals made an acquisition analysis, for the purpose
of acquiring such entity.
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Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit Executive from acquiring as an investment not more than one percent
(1%) of the capital stock of a competing business, whose stock is traded on a
national securities exchange or on an over-the-counter or similar market.
(b) Because of the difficulty of measuring economic losses to the Company
and Metals as a result of a breach of the foregoing covenant, and because of the
immediate and irreparable damage that could be caused to the Company and Metals
for which they would have no other adequate remedy, Executive agrees that the
foregoing covenant may be enforced by Metals or the Company in the event of
breach by him, by injunctions and restraining orders.
(c) It is agreed by the parties that the foregoing covenants in this
Section 3 impose a reasonable restraint on Executive in light of the activities
and business of the Company or Metals, as the case may be (including Metals'
other subsidiaries) on the date of execution of this Agreement and the current
plans of Metals (including Metals' other subsidiaries); but it is also the
intent of the Company and Executive that such covenants be construed and
enforced in accordance with the changing activities, business and locations of
the Company and Metals, as the case may be (including Metals' other
subsidiaries) throughout the term of this covenant, whether before or after the
date of termination of the employment of Executive. For example, if, during the
term of this Agreement, the Company or Metals, as the case may be (including
Metals' other subsidiaries) engages in new and different activities, enters a
new business or establishes new locations for its current activities or business
in addition to or other than the activities or business enumerated under the
Recitals above or the locations currently established therefor, then Executive
will be precluded from soliciting the customers or employees of such new
activities or business or from such new location and from directly competing
with such new business within 200 miles of its then-established operating
location(s) through the term of this covenant. It is further agreed by the
parties hereto that, in the event that Executive shall cease to be employed
hereunder, and shall enter into a business or pursue other activities not in
competition with the Company or Metals (including Metals' other subsidiaries),
or similar activities or business in locations the operation of which, under
such circumstances, does not violate clause (a) of this Section 3, and in any
event such new business, activities or location are not in violation of this
Section 3 or of Executive's obligations under this Section 3, if any, Executive
shall not be chargeable with a violation of this Section 3 if the Company or
Metals (including Metals' other subsidiaries) shall thereafter enter the same,
similar or a competitive (i) business, (ii) course of activities or (iii)
location, as applicable.
(d) The covenants in this Section 3 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of any
other covenant. Moreover, in the event any court of competent jurisdiction shall
determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable, and the
Agreement shall thereby be reformed.
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(e) All of the covenants in this Section 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against the Company or
Metals, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by Metals or the Company of such covenants. It is
specifically agreed that the period of two (2) years following termination of
employment stated at the beginning of this Section 3, during which the
agreements and covenants of Executive made in this Section 3 shall be effective,
shall be computed by excluding from such computation any time during which
Executive is in violation of any provision of this Section 3.
4. TERM; TERMINATION; RIGHTS ON TERMINATION OF EMPLOYMENT.
(a) The term of this Agreement shall begin on the Effective Date and
continue for two (2) years (the "Term"), unless terminated sooner as herein
provided. This Agreement and Executive's employment may be terminated in any one
of the followings ways:
(i) DEATH. The death of Executive shall immediately terminate this
Agreement with no severance compensation due to Executive's estate.
(ii) DISABILITY. If, as a result of incapacity due to physical or
mental illness or injury, Executive shall have been absent from his
full-time duties hereunder for four (4) consecutive months, then thirty
(30) days after receiving written notice (which notice may occur before or
after the end of such four (4) month period, but which shall not be
effective earlier than the last day of such four (4) month period), the
Company may terminate Executive's employment hereunder provided Executive
is unable to resume his full-time duties with or without reasonable
accommodation at the conclusion of such notice period. PROVIDED, HOWEVER,
IF COMPANY'S THEN-EXISTING DISABILITY (SHORT/LONG TERM) PROGRAM PROVIDES
MORE BENEFITS, THEN COMPANY'S DISABILITY PROGRAM SHALL CONTROL. Also,
Executive may terminate his employment hereunder if his health should
become impaired to an extent that makes the continued performance of his
duties hereunder hazardous to his physical or mental health or his life,
provided that Executive shall have furnished the Company with a written
statement from a qualified doctor to such effect and provided, further,
that, at the Company's request made within thirty (30) days of the date of
such written statement, Executive shall submit to an examination by a
doctor selected by the Company who is reasonably acceptable to Executive
or Executive's doctor and such doctor shall have concurred in the
conclusion of Executive's doctor. In the event this Agreement is
terminated as a result of Executive's disability, Executive shall receive
from the Company, in a lump-sum payment due within ten (10) days of the
effective date of termination, the base salary at the rate then in effect
for whatever time period is remaining under the Term of this Agreement or
for one (1) year, whichever amount is greater; provided, however, that any
such payments shall be reduced by the amount of any disability insurance
payments payable to the Executive as a result of such disability.
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(iii) GOOD CAUSE. The Company may terminate the Agreement
immediately for good cause, which shall be: (1) Executive's willful,
material and irreparable breach of this Agreement; (2) Executive's gross
negligence in the performance or intentional nonperformance of any of
Executive's material duties and responsibilities hereunder; (3)
Executive's willful dishonesty, fraud or misconduct with respect to the
business or affairs of the Company or Metals which materially and
adversely affects the operations or reputation of the Company or Metals;
(4) Executive's conviction of a felony crime; or (5) confirmed positive
illegal drug test result (subject to Company's drug program, if
applicable). In the event of a termination for good cause, Executive shall
have no right to any severance compensation.
(iv) WITHOUT CAUSE. At any time after the commencement of
employment, Executive may, without cause, and without Good Reason (as
hereinafter defined) terminate this Agreement and Executive's employment,
effective thirty (30) days after written notice is provided to the
Company. Executive may only be terminated without cause by the Company
during the Term hereof if such termination is approved by at least eighty
percent (80%) of the members of the Board of Directors of Metals
(excluding the Executive if the Executive is then a member of the Board of
Directors of Metals). Should Executive be terminated by the Company
without cause or should Executive terminate with Good Reason during the
Term, Executive shall receive from the Company, in a lump-sum payment due
on the effective date of termination, the base salary at the rate then in
effect for whatever time period is remaining under the Term of this
Agreement or one (1) year, whichever is greater. Further, any termination
without cause by the Company shall operate to shorten the period set forth
in Section 3(a) and during which the terms of Section 3 apply to one (1)
year from the date of termination of employment. If Executive resigns or
otherwise terminates his employment without Good Reason, the provisions of
Section 3 hereof shall apply, except that Executive shall receive no
severance compensation.
(b) DEFINITION OF "GOOD REASON". Executive shall have "Good Reason" to
terminate this Agreement and his employment hereunder upon the occurrence of any
of the following events: (a) Executive is demoted by means of a reduction in
authority, responsibilities or duties to a position of less stature or
importance within the Company than the position described in Section 1 hereof;
or (b) Executive's annual base salary as determined pursuant to Section 2 hereof
is reduced to a level that is less than 90% of the base salary paid to Executive
during the prior contract year under this Agreement, unless Executive has agreed
in writing to that demotion or reduction.
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(c) CHANGE IN CONTROL OF METALS. In the event of a "Change in Control of
Metals" (as defined below) during the Term, Section 11 below shall apply.
(d) EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason provided above, Executive shall be entitled to receive all compensation
earned and all benefits and reimbursements due through the effective date of
termination. Additional compensation subsequent to termination, if any, will be
due and payable to Executive only to the extent and in the manner expressly
provided herein. All other rights and obligations of the Company and Executive
under this Agreement shall cease as of the effective date of termination, except
that the Company's obligations under Section 8 herein and Executive's
obligations under Sections 3, 5, 6, 7 and 9 herein shall survive such
termination in accordance with their terms.
(e) MATERIAL BREACH BY COMPANY. If termination of Executive's employment
arises out of the Company's failure to pay Executive on a timely basis the
amounts to which he is entitled under this Agreement or as a result of any other
material breach of this Agreement by the Company, as determined by a court of
competent jurisdiction or pursuant to the provisions of Section 15 below, the
Company shall pay the greater of the base salary at the rate then in effect for
whatever time period is remaining under the Agreement or for one (1) year,
whichever is greater and the provisions of Section 3 shall not apply.
(f) CERTAIN TERMINATIONS. If Executive is terminated without cause or
terminates his employment hereunder with Good Reason, (1) the Company shall make
the insurance premium payments contemplated by COBRA for a period of 12 months
after such termination, (2) the Executive shall be entitled to receive a pro
rated portion of any annual bonus to which the Executive would have been
entitled for the year during which the termination occurred had the Executive
not been terminated and (3) all of Executive's options to purchase Metals stock
shall vest thereupon.
5. RETURN OF COMPANY PROPERTY. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Executive by or on behalf of the Company, Metals or
their representatives, vendors or customers which pertain to the business of the
Company or Metals shall be and remain the property of the Company or Metals, as
the case may be, and be subject at all times to their discretion and control.
Likewise, all correspondence, reports, records, charts, advertising materials
and other similar data pertaining to the business, activities or future plans of
the Company or Metals which is collected by Executive shall be delivered
promptly to the Company without request by it upon termination of Executive's
employment.
6. INVENTIONS. Executive shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by
Executive, solely or jointly with another, during the period of employment or
within one (1) year thereafter, and which are directly related to the business
or activities of the Company and which Executive conceives as a result of his
employment by the Company. Executive hereby assigns and agrees to assign all his
interests therein to the Company or its nominee. Whenever requested to do so by
the Company, Executive shall execute any and all applications, assignments or
other instruments that the Company shall deem necessary to apply for and obtain
Letters Patent of the United States or any foreign country or to otherwise
protect the Company's interest therein.
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7. TRADE SECRETS. Executive agrees that he will not, during or after the
Term of this Agreement with the Company, disclose the specific terms of the
Company's or Metals' relationships or agreements with their respective
significant vendors or customers or any other significant and material trade
secret of the Company or Metals, whether in existence or proposed, to any
person, firm, partnership, corporation or business for any reason or purpose
whatsoever.
8. INDEMNIFICATION. In the event Executive is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by the Company
or Metals against Executive), by reason of the fact that he is or was performing
services under this Agreement, then the Company shall indemnify Executive
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement, as actually and reasonably incurred by Executive in
connection therewith to the maximum extent permitted by applicable law. The
advancement of expenses shall be mandatory to the extent permitted by applicable
law. In the event that both Executive and the Company are made a party to the
same third-party action, complaint, suit or proceeding, the Company agrees to
engage counsel, and Executive agrees to use the same counsel, provided that if
counsel selected by the Company shall have a conflict of interest that prevents
such counsel from representing Executive, Executive may engage separate counsel
and the Company shall pay all reasonable attorneys' fees of such separate
counsel. The Company shall not be required to pay the fees of more than one law
firm except as described in the preceding sentence, and shall not be required to
pay the fees of more than two law firms under any circumstances. Further, while
Executive is expected at all times to use his best efforts to faithfully
discharge his duties under this Agreement, Executive cannot be held liable to
the Company or Metals for errors or omissions made in good faith where Executive
has not exhibited gross, willful and wanton negligence and misconduct or
performed criminal and fraudulent acts which materially damage the business of
the Company or Metals.
9. NO PRIOR AGREEMENTS. Executive hereby represents and warrants to the
Company that the execution of this Agreement by Executive and his employment by
the Company and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client or any other person or
entity. Further, Executive agrees to indemnify the Company for any claim,
including, but not limited to, attorneys' fees and expenses of investigation, by
any such third party that such third party may now have or may hereafter come to
have against the Company based upon or arising out of any non-competition
agreement, invention or secrecy agreement between Executive and such third party
which was in existence as of the date of this Agreement.
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10. ASSIGNMENT; BINDING EFFECT. Executive understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Executive agrees, therefore, he cannot
assign all or any portion of his performance under this Agreement. Subject to
the preceding two (2) sentences and the express provisions of Section 12 below,
this Agreement shall be binding upon, inure to the benefit of and be enforceable
by the parties hereto and their respective heirs, legal representatives,
successors and assigns.
11. CHANGE IN CONTROL.
(a) Unless Executive elects to terminate this Agreement pursuant to (c)
below, Executive understands and acknowledges that Metals and/or the Company may
be merged or consolidated with or into another entity and that such entity shall
automatically succeed to the rights and obligations of Metals and/or the Company
hereunder or that the Company may undergo another type of Change in Control. In
the event such a merger or consolidation or other Change in Control is initiated
prior to the end of the Term, then the provisions of this Section 11 shall be
applicable.
(b) In the event of a pending Change in Control wherein Metals and/or the
Company and Executive have not received written notice at least five (5)
business days prior to the anticipated closing date of the transaction giving
rise to the Change in Control from the successor to all or a substantial portion
of Metals' and/or the Company's business and/or assets that such successor is
willing as of the closing to assume and agree to perform Metals' and/or the
Company's obligations under this Agreement in the same manner and to the same
extent that Metals and/or the Company is hereby required to perform, then such
Change in Control shall be deemed to be a termination of this Agreement by
Metals and/or the Company without cause during the Term and the applicable
portions Section 4(a)(iv) will apply; however, under such circumstances, the
amount of the lump-sum severance payment due to Executive shall be triple the
amount calculated under the terms of Section 4(a)(iv) and the non-competition
provisions of Section 3 shall not apply whatsoever.
(c) In any Change in Control situation, Executive may, at his sole
discretion, elect to terminate this Agreement by providing written notice to the
Company at least five (5) business days prior to the anticipated closing of the
transaction giving rise to the Change in Control. In such case, the applicable
provisions of Section 4(a)(iv) will apply as though the Company had terminated
the Agreement without cause during the Term; however, under such circumstances,
the amount of the lump-sum severance payment due to Executive shall be double
the amount calculated under the terms of Section 4(a)(iv) and the
non-competition provisions of Section 3 shall all apply for a period of two (2)
years from the effective date of termination.
(d) For purposes of applying Section 4 under the circumstances described
in (b) and (c) above, the effective date of termination will be the closing date
of the transaction giving rise to the Change in Control and all compensation,
reimbursements and lump-sum payments due Executive must be paid in full by the
Company at or prior to such closing. Further, Executive will be given sufficient
time and opportunity to elect whether to exercise all or any of his vested
options to purchase Metals Common Stock, such that he may convert the options to
shares of Metals Common Stock at or prior to the closing of the transaction
giving rise to the Change in Control, if he so desires.
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(e) A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than Metals or an employee benefit plan of
Metals, acquires directly or indirectly the beneficial ownership (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as
amended) of any voting security of the Company and immediately after such
acquisition such Person is, directly or indirectly, the Beneficial Owner
of voting securities representing 50% or more of the total voting power of
all of the then-outstanding voting securities of the Company;
(ii) the following individuals no longer constitute a majority of
the members of the Board of Directors of Metals: (A) the individuals who,
as of the closing date of Metals' initial public offering, constitute the
Board of Directors of Metals (the "Original Directors"); (B) the
individuals who thereafter are elected to the Board of Directors of Metals
and whose election, or nomination for election, to the Board of Directors
of Metals was approved by a vote of at least two-thirds (2/3) of the
Original Directors then still in office (such directors becoming
"Additional Original Directors" immediately following their election); and
(C) the individuals who are elected to the Board of Directors of Metals
and whose election, or nomination for election, to the Board of Directors
of Metals was approved by a vote of at least two-thirds (2/3) of the
Original Directors and Additional Original Directors then still in office
(such directors also becoming "Additional Original Directors" immediately
following their election);
(iii) the stockholders of Metals shall approve a merger,
consolidation, recapitalization, or reorganization of Metals, a reverse
stock split of outstanding voting securities, or consummation of any such
transaction if stockholder approval is not obtained, other than any such
transaction which would result in at least 75% of the total voting power
represented by the voting securities of the surviving entity outstanding
immediately after such transaction being Beneficially Owned by at least
75% of the holders of outstanding voting securities of Metals immediately
prior to the transaction, with the voting power of each such continuing
holder relative to other such continuing holders not substantially altered
in the transaction; or
(iv) the stockholders of Metals shall approve a plan of complete
liquidation of Metals or an agreement for the sale or disposition by
Metals of all or a substantial portion of Metals' assets (i.e., 50% or
more of the total assets of Metals).
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(f) Executive must be notified in writing by the Company or Metals at any
time that the Company or any member of its Board anticipates that a Change in
Control may take place.
(g) Executive shall be reimbursed by the Company or its successor for any
excise taxes that Executive incurs under Section 4999 of the Internal Revenue
Code of 1986, as a result of any Change in Control. Such amount will be due and
payable by the Company or its successor within ten (10) days after Executive
delivers a written request for reimbursement accompanied by a copy of his tax
return(s) showing the excise tax actually incurred by Executive.
12. PLACE OF PERFORMANCE
(a) Executive understands that Executive may be requested by the Board to
relocate from Executive's present residence to another geographic location in
order to more efficiently carry out Executive's duties and responsibilities
under this Agreement or as part of a promotion or other increase in duties and
responsibilities. In such event, if Executive agrees to relocate, the Company
will pay all relocation costs to move Executive, Executive's immediate family
and their personal property and effects. Such costs may include, by way of
example, but are not limited to, pre-move visits to search for a new residence,
investigate schools or for other purposes; temporary lodging and living costs
prior to moving into a new permanent residence; duplicate home carrying costs;
all closing costs on the sale of Executive's present residence and on the
purchase of a comparable residence in the new location; and added income taxes
that Executive may incur if any relocation costs are not deductible for tax
purposes. The general intent of the foregoing is that Executive shall not
personally bear any out-of-pocket cost as a result of the relocation, with an
understanding that Executive will use Executive's best efforts to incur only
those costs which are reasonable and necessary to effect a smooth, efficient and
orderly relocation with minimal disruption to the business affairs of the
Company and the personal life of Executive and Executive's family.
(b) Notwithstanding the above, if Executive is requested by the Board to
relocate and Executive refuses, such refusal shall not constitute "cause" for
termination of this Agreement under the terms of paragraph 4(a)(iii).
13. COMPLETE AGREEMENT. This Agreement sets forth the entire agreement of
the parties hereto relating to the subject matter hereof and supersedes any
other employment agreements or understandings, written or oral, between the
Company and Executive. This Agreement is not a promise of future employment.
Executive has no oral representations, understandings or agreements with the
Company or any of its officers, directors or representatives covering the same
subject matter as this Agreement. This written Agreement is the final, complete
and exclusive statement and expression of the agreement between the Company and
Executive and of all the terms of this Agreement, and it cannot be varied,
contradicted or supplemented by evidence of any prior or contemporaneous oral or
written agreements. This written Agreement may not be later modified except by a
further writing signed by a duly authorized officer of the Company and
Executive, and no term of this Agreement may be waived except by writing signed
by the party waiving the benefit of such term.
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14. NOTICE. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company: Xxxxx Metal Servicenters, Inc.
c/o Metals USA, Inc.
Attn: Chairman of the Board
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Metals USA, Inc.
Xxxx Xxxxxxx, General Counsel
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
To Executive: Xxxxxxx Xxxxxxx
_______________________________
_______________________________
_______________________________
Notice shall be deemed given and effective on the earlier of three (3) days
after the deposit in the U.S. mail of a writing addressed as above and sent
first class mail, certified, return receipt requested, or when actually received
by means of hand delivery, delivery by Federal Express or other courier service,
or by facsimile transmission. Either party may change the address for notice by
notifying the other party of such change in accordance with this Section 13.
15. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
Section headings herein are for reference purposes only and are not intended in
any way to describe, interpret, define or limit the extent or intent of the
Agreement or of any part hereof.
16. ARBITRATION. With the exception of Sections 3 and 7, any unresolved
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration, conducted before a panel of three (3)
arbitrators in, Detroit, Michigan in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association
("AAA") then in effect, provided that Executive shall comply with the Company's
grievance procedures in an effort to resolve such dispute or controversy before
resorting to arbitration, and provided further that the parties may agree to use
arbitrators other than those provided by the AAA. The arbitrators shall not have
the authority to add to, detract from, or modify any provision hereof nor to
award punitive damages to any injured party. The arbitrators shall have the
authority to order back-pay, severance compensation, vesting of options (or cash
compensation in lieu of vesting of options), reimbursement of costs, including
those incurred to enforce this Agreement, and interest thereon in the event the
arbitrators determine that Executive was terminated without disability or good
cause, as defined in Sections 4(a)(ii) and 4(a)(iii), respectively, or that the
Company has otherwise materially breached this Agreement. A decision by a
majority of the arbitration panel shall be final and binding. Judgment may be
entered on the arbitrators' award in any court having jurisdiction. The direct
expense of any arbitration proceeding shall be borne by the Company.
17. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Michigan.
18. COUNTERPARTS. This Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
XXXXX METAL SERVICENTERS, INC.
By:
Name:
Title:
EXECUTIVE:
Xxxxxxx Xxxxxxx
