Exhibit 10.36
SEPARATION AND RELEASE AGREEMENT
This Agreement is made and entered into by SCHNITZER STEEL INDUSTRIES, INC. (the “Company”) and MICHAEL HENDERSON (“Mr. Henderson”) on the following terms:
Mr. Henderson’s employment with the Company will terminate effective July 21, 2023 or such earlier date as may be mutually agreed by the Company and Mr. Henderson (the “Termination Date”). Mr. Henderson hereby confirms his resignation from all director and officer positions with the Company and its affiliates as of the Termination Date.
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Exhibit 10.36
Mr. Henderson further understands and acknowledges that this Confidential Information and the Company’s ability to reserve it for the exclusive knowledge and use of the Company is of great competitive importance and commercial value to the Company, and that improper use or disclosure of the Confidential Information by Mr. Henderson may cause the Company to incur financial costs, loss of business advantage, liability under confidentiality agreements with third parties, civil damages, and criminal penalties.
For purposes of this Agreement, Confidential Information includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic, or any other form or medium, relating directly or indirectly to the business that: a) is marked as Confidential Information; b) is treated by the Company as Confidential Information; c) would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used; or d) that if known to others, would give them an unfair competitive advantage. This provision is to be construed as broadly as permitted by law for the benefit of the Company to protect its trade secrets and confidential and proprietary information.
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Mr. Henderson agrees and covenants: to treat all Confidential Information as strictly confidential; not to directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever except as required in the performance of any of Mr. Henderson’s obligations to the Company under this Agreement and as authorized by an officer of the Company.
Nothing in this Agreement shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Mr. Henderson shall promptly provide written notice of any such order to an authorized officer of the Company where such notice is not prohibited by law or court order.
Nothing in this Agreement prohibits or restricts Mr. Henderson from filing a charge or complaint with the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), or any other securities regulatory agency or self-regulatory authority, or the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), the Occupational Safety and Health Administration (OSHA), or any other federal, state, or local governmental agency or commission (collectively, “Government Agencies”). Mr. Henderson further understands that this Agreement does not limit Mr. Henderson’s ability to communicate with any securities regulatory agency or authority or Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any securities regulatory agency or authority or Government Agencies in connection with reporting a possible securities law violation without notice to the Company.
Notice of Immunity Under the Defend Trade Secrets Act of 2016. Notwithstanding any other provision of this Agreement, Mr. Henderson will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If Mr. Henderson files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Mr. Henderson may disclose the Company’s trade secrets to Mr. Henderson’s attorney and use the trade secret information in the court proceeding if Mr. Henderson: (1) files any document containing the trade secret under seal; and (2) does not disclose the trade secret, except pursuant to court order.
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For purposes of this non-compete clause, “Competitive Activity” means to, directly or indirectly, in whole or in part, engage in, provide services to, or otherwise participate in, whether as an employee, company, owner, operator, manager, advisor, consultant, agent, partner, director, stockholder, officer, volunteer, intern, or any other similar capacity, any entity engaged in a business within the Company’s Industry. Without limiting the foregoing, Competitive Activity also includes activity that may require or inevitably require Mr. Henderson’s disclosure of trade secrets, proprietary information, or Confidential Information.
Nothing in this Agreement prohibits Mr. Henderson from purchasing or owning less than five percent (5%) of the publicly traded securities of any corporation, provided that Mr. Henderson’s ownership represents a passive investment and that Mr. Henderson is not a controlling person of, or a member of a group that controls, the corporation.
Mr. Henderson understands and acknowledges that loss of any of these customer relationships or goodwill will cause significant and irreparable harm to the Company.
Mr. Henderson agrees and covenants for the remainder of his employment with the Company and for the term of twelve (12) months to run consecutively following the Termination Date, not to directly or indirectly solicit or attempt to solicit, contact (including but not limited to
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Exhibit 10.36
communications using email, regular mail, express mail, telephone, fax, instant message, social media, or any other oral, written, or electronic transmission), attempt to contact, or meet with any current, former, or prospective customers of the Company or its subsidiaries for the purpose of offering or accepting goods or services similar to or competitive with those offered by the Company (other than in connection with his provision of services to the Company).
The parties mutually agree that this Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement.
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This Release shall not affect any rights that Mr. Henderson may have under health insurance plans or under the retirement plans maintained by the Company or for workers’ compensation benefits, unemployment compensation, or any other claim for which a release is prohibited by law.
Mr. Henderson assumes all risks attendant to the release of claims arising out of facts occurring at any time prior to the execution of this Agreement which are unknown, unforeseen, or latent.
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[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates below.
THIS AGREEMENT CONTAINS A RELEASE. PLEASE READ CAREFULLY BEFORE SIGNING.
Dated: 7/5/2023 | /s/ Michael Henderson |
| SCHNITZER STEEL INDUSTRIES INC. |
Dated: 7/5/2023 | By: /s/ Erich Wilson Title: Chief Human Resources Officer |