EXHIBIT 10.35
FOUNDERS' EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") dated this day of
September, 1997 (the "Effective Date"), by and between Xxxxxx
Titanium, Ltd. a Delaware corporation together with its predecessor (the
"Company") which is a wholly-owned subsidiary of Metals USA, Inc., a Delaware
corporation ("Metals") and Xxxxx Xxxxxx ("Executive").
R E C I T A L S
A. As of the Effective Date, the Company and the other subsidiaries of
Metals are or will be 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 and Chief Executive
Officer 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.
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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. In no event shall the base salary be reduced
unless agreed to in writing by Executive.
(b) 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
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.
(iii) The Company shall provide Executive with other executive
perquisites as may be available to or deemed appropriate for Executive by
the Board 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 and stock
option plans that may be sponsored by the Company and/or Metals for
similarly positioned employees.
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 good 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:
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(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
anywhere in the world or Metals, within 200 miles of where Metals or any
of its' subsidiaries conducts business, including any territory serviced
by Metals or any of such subsidiaries (collectively 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.
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, unless
consented to by Metals, such consent not to be unreasonably withheld.
(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.
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(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).
(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.
(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 three (3) years (the " Term"), unless terminated sooner as herein
provided, and shall continue thereafter on a year-to-year basis on the same
terms and conditions contained herein in effect as of the time of renewal. The
parties agree and acknowledge that at the end of the Term, they will consider
extending the term of this Agreement or entering into an acceptable two year
consulting arrangement in the event an acceptable successor to Executive's
position is not then employed by the Company. 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 one hundred and twenty (120) days, then
thirty (30) days after receiving written notice (which notice may occur
before or after the end of such one hundred and twenty (120) day period,
but which shall not be effective earlier than the last day of such one
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hundred and twenty (120) day 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 under Company-sponsored plans as a result of such
disability .
(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. If the Company intends to
terminate Executive's employment under clauses (1), (2), or (3) above, it
will give Executive not less than 10 days' prior notice of a meeting of
the Board of Directors of the Company called to consider the matter, allow
Executive to attend such meeting with counsel to present Executive's views
of the issues, and allow Executive 10 days after the meeting to cure the
alleged breach or conduct if the Board of Directors reasonably concludes
that it is curable. These procedures will not prohibit the Board of
Directors from a temporary suspension of Executive's duties if it
reasonably concludes that it must do so to protect the Company's
interests.
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(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) the Company or Metals materially breaches this Agreement.
(c) CHANGE IN CONTROL OF METALS. In the event of a "Change in Control of
Metals" (as defined below) during the Initial 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. To the extent that the terms of any employee benefit plans or
arrangements then covering the Executive provides for benefits or payments after
the date of termination, the provisions thereof will control notwithstanding any
other provision of this Agreement. 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) 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, (3) all of Executive's options to purchase Metals stock
shall vest thereupon, and (4) upon satisfaction of Company's obligations
hereunder, Executive agrees to release Company of any further obligation.
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(f) ANNOUNCEMENTS. Any public announcement or other written pronouncements
with respect to Executive's termination is subject to his prior approval, which
will not be unreasonably withheld.
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, 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 reasonably requested to do so by the Company,
Executive shall execute any and all applications, assignments or other
instruments that the Company shall reasonably 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.
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
third-party 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 or as an officer or director of the Company or
Metals, 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
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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 reasonably
acceptable to Executive, 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 commercially reasonable
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; NO EXISTING CLAIMS. 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, reasonable 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 subject to reimbursement by the Company if it is determined in such
proceeding that such third party was not successful with respect to such claim.
Executive represents and warrants that he has no claim against the
Company, whatsoever, as of the date of this Agreement, other than compensation
unpaid as of the date hereof and owing to him.
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 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.
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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 Initial 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 Initial Term and the
applicable portions Section 4(a)(ii) 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)(ii) 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 Initial 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)(ii) and
the non-competition provisions of Section 3 shall all apply for a period of one
(1) year 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, opportunity and information 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).
(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.
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(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. 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. 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.
13. NOTICE. All notices, including communications required or permitted
hereunder shall be in writing. Any notice will be deemed to have been duly given
if personally delivered, sent by a recognized messenger or next day courier
service or sent by United States mail, telex or facsimile transmission, and will
be deemed received, unless earlier received (a) if sent by express, certified or
regular mail, return receipt requested, when actually received or delivery
refused; (b) if sent by messenger or courier, when actually received or delivery
refused; (c) if delivered by hand, on the date of delivery; and (d) if sent by
telex or facsimile transmission, on the date sent, so long as a confirming
notice is sent by one of the foregoing methods. Whenever any notice is required
hereunder, it shall be given in writing addressed as follows:
To the Company: Xxxxxx Titanium, Ltd.
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
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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: Xxxxx Xxxxxx
_____________________________
_____________________________
_____________________________
or to such other address as any party hereto shall specify pursuant to this
Section 13 from time to time.
14. 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.
15. 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, Los Angeles, California 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.
16. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of California.
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17. 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:
XXXXXX TITANIUM, LTD.
By:
Name:
Title:
EXECUTIVE:
Xxxxx Xxxxxx
