Exhibit 10.1
EXECUTIVE OFFICER (OTHER THAN CEO) SEVERANCE AGREEMENT
(as amended and restated to reflect certain March, 2000 language changes)
__________________, 2000
(Addressee)
Dear (Addressee):
Reference is made to the agreement between us, dated _____________, 19___ (the
"Agreement"), setting forth the benefits to be provided to you in the event of
the termination of your employment upon the circumstances therein specified.
Upon your execution of a counterpart of this letter, the Agreement shall be
deemed amended and, as so amended, is restated in its entirety to read as
hereinafter set forth.
AK Steel Corporation ("AKS"), since its formation, has established itself as a
strong competitor in the steel industry. Continuity of the management of AKS is
a critical factor to the continued growth and success of AKS. The Board of
Directors ("Board") of AK Steel Holding Corporation ("Holding"), of which AKS is
a wholly-owned subsidiary, believes it is in the best interest of Holding and
AKS to reinforce and encourage the continued attention and dedication of key
members of management to their assigned duties.
In consideration of the mutual promises contained herein, it is hereby agreed
that Holding shall cause AKS to provide and AKS shall provide to you, and you
shall receive from AKS, the benefits set forth in this Agreement if your
employment by AKS (including, for the purposes hereof, its subsidiaries and
Affiliates, as hereinafter defined) is terminated during the term of this
Agreement as provided herein.
1. Purpose
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This Agreement establishes certain basic terms and conditions relating to
your employment with AKS, and special arrangements relating to the
termination of your employment with AKS for any reason other than: (i) your
voluntary retirement; (ii) your becoming totally and permanently disabled
under the AKS long-term disability plan or policy; or (iii) your death.
This Agreement supersedes all prior agreements with AKS or any predecessor
business, as well as all other AKS severance policies and practices, except
to the extent incorporated or restated herein. Subject to the foregoing,
neither the termination of your employment nor anything contained in this
Agreement shall have any affect upon your rights under (i) any tax-
qualified "pension benefit plan", as such term is defined in the Employee
Retirement Income
Security Act of 1974, as amended (ERISA), (ii) any "welfare benefit plan"
as defined in ERISA, including by way of illustration and not limitation,
any medical, surgical or hospitalization benefit coverage or long-term
disability benefit coverage, or (iii) any non-qualified deferred
compensation arrangement, including by way of illustration and not
limitation, any non-qualified pension plan or deferred compensation plan.
2. Employment
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During the term of this Agreement:
(a) you will be employed by AKS (including for this purpose any direct
or indirect subsidiary or Affiliate of AKS to which you may be
transferred) in your present position or in a position that is at
least comparable to your present position in compensation,
responsibility and stature and for which you are suited by education
and background; and
(b) you will be eligible to participate in any employee benefit plan of
AKS (excluding any severance policies and practices other than this
Agreement) in accordance with the terms of said plans as they may be
amended from time to time.
Plans, policies and practices that generally apply to other members of
management of AKS will be referred to in this Agreement as your "Employment
Benefits." Your Employment Benefits may be modified from time to time after
the date hereof without violation of this Agreement if the changes apply
generally to other members of management of AKS.
3. Term of Agreement
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This Agreement shall be deemed effective as of ________________________,
200__ (the "Effective Date") and shall continue in effect through the later
of: (i) the fifth anniversary of the Effective Date or (ii) the completion
of full payment of all benefits promised hereunder except for the benefits
payable pursuant to the pension benefit plans referenced in Section 1
above. This Agreement shall be automatically renewed annually from and
after the fifth anniversary of the Effective Date unless written notice of
non-renewal is given by you or by AKS at least ninety (90) days prior to
the expiration of the term, including any extension thereof.
4. Termination of Employment
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Your employment may be terminated during the term of this Agreement in
accordance with any of the following paragraphs. The date upon which the
termination of your employment becomes effective is hereinafter referred to
as the "Date of Termination". The period between the date of notice of
termination and the Date of Termination is referred to as the "Notice
Period". AKS may relieve you of your employment duties upon the giving of
any notice of termination or at any time during any Notice Period; provided
however, during such Notice
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Period or the balance thereof, you shall continue to receive your full
salary and Employment Benefits.
(a) Involuntary Termination Without Cause
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AKS may terminate your employment without Cause (as defined in
Section 4(b) below), but only upon written notice given to you by
AKS not less than thirty (30) days prior to the Date of Termination.
From and after the Date of Termination, pursuant to this Section
4(a), you shall be entitled to those benefits provided under Section
5.
(b) Involuntary Termination For Cause
---------------------------------
AKS may terminate your employment for Cause, but only upon written
notice, specifying the facts or circumstances constituting such
Cause, which notice may be given on or at any time prior to the Date
of Termination. For the purposes of this Section 4(b), "Cause" means
a willful engaging in gross misconduct materially and demonstrably
injurious to AKS. "Willful" means an act or omission in bad faith
and without reasonable belief that such act or omission was in or
not opposed to the best interests of AKS. From and after your Date
of Termination, pursuant to this Section 4 (b), you shall only be
entitled to those benefits provided under Section 8.
(c) Voluntary Termination Without Good Reason
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You may voluntarily terminate your employment without Good Reason
(as defined in Section 4 (d) below), but only upon written notice
given to AKS by you not less than thirty (30) days prior to the Date
of Termination. From and after the Date of Termination, pursuant to
this Section 4 (c), you shall only be entitled to those benefits
provided under Section 8.
(d) Voluntary Termination For Good Reason
-------------------------------------
You may voluntarily terminate your employment for Good Reason (as
herein defined), but only upon written notice, specifying the facts
or circumstances constituting such Good Reason, given to AKS by you
at least thirty (30) days prior to the Date of Termination and not
more than sixty (60) days following the occurrence of the
circumstances constituting such Good Reason. For the purposes of
this Section 4(d), "Good Reason" shall mean the occurrence, without
your express written consent, of any of the following circumstances
(unless, in the case of clauses (i), (v), (vi), (vii) or (viii)
below, such circumstances are fully corrected prior to the Date of
Termination specified in the notice of termination):
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(i) the assignment to you of any duties inconsistent with your
position within AKS or a significant adverse alteration in
the nature or status of the responsibilities of your
employment;
(ii) a reduction by AKS in your annual base salary, but no such
reduction shall be effective with respect to your benefits
under Section 5 if you have given timely notice pursuant to
this Section 4(d);
(iii) a requirement by AKS that you be based anywhere other than
the principal executive offices of AKS except for required
travel on AKS business to an extent substantially consistent
with customary business travel obligations;
(iv) the failure of AKS to pay to you any portion of your
compensation within seven (7) days of the date such
compensation is due;
(v) the failure of AKS, at any time within 24 months following
the occurrence of a Change In Control (as defined in Section
7(b) hereof), to continue in effect any compensation plan in
which you participated immediately prior to such Change In
Control, which plan is material to your total compensation,
unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to
such plan, or the failure of AKS to continue your
participation in such compensation plan (or in such
substitute or alternative plan) on a basis not materially
less favorable to you, both in terms of the amount of
benefits provided and the level of your participation
relative to other participants, than that existing
immediately prior to such Change In Control;
(vi) any material reduction, except to the extent permitted by
Section 2 hereof, in your Employment Benefits;
(vii) the failure of AKS to obtain a satisfactory agreement from
any successor corporation to assume and agree to perform this
Agreement, as contemplated in Section 15 hereof;
(viii) any purported termination of your employment by AKS that is
not effected in compliance with the provisions of Section
4(a) or 4(b) hereof, as the case may be;
(ix) notice of non-renewal is given by AKS pursuant to Section 3
of this Agreement.
If you give notice of termination for Good Reason, then, during the
Notice Period (which shall not exceed 60 days), your full base
salary and Employment Benefits shall
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be the same as in effect prior to the occurrence of the
circumstances constituting such Good Reason, subject to the right of
AKS to make changes to your Employment Benefits to the extent
permitted by Section 2. From and after the Date of Termination,
pursuant to this Section 4 (d), you shall be entitled to those
benefits provided under Section 5.
(e) Voluntary Termination After A Change In Control
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You may voluntarily terminate your employment, with or without Good
Reason, during the thirty (30)-day period immediately following the
six (6)-month anniversary of a Change In Control, but only upon
written notice given to AKS by you during such thirty (30)-day
period specifying the Date of Termination which, unless otherwise
agreed by you and AKS, shall not be less than thirty (30) days nor
more than sixty (60) days following the end of such thirty (30)-day
period. From and after the Date of Termination, pursuant to this
Section 4(e), you shall be entitled to those benefits provided under
Section 5.
5. Special Severance Benefits
--------------------------
(a) If your employment with AKS is involuntarily terminated by AKS
without Cause in accordance with Section 4(a), you voluntarily
terminate your employment for Good Reason in accordance with Section
4(d), or you voluntarily terminate your employment after a Change In
Control in accordance with Section 4(e), then you shall receive the
following benefits:
(i) Severance pay equal to your base salary shall be paid for a
period (hereafter, the "Severance Pay Period") of (1) 36
months from the Date of Termination, if the notice of your
termination is given within 24 months after the occurrence of
a Change In Control or (2) 24 months from your Date of
Termination, if the notice of your termination is given at
any time other than within 24 months after the occurrence of
a Change In Control. The aggregate base salary payable in
accordance with this Section 5(a)(i) shall be paid to you in
a single, undiscounted, lump sum payment within ten (10) days
following the Date of Termination unless you have requested,
in writing, at any time prior to your Date of Termination to
receive payments of your base salary in regular monthly
payments throughout the Severance Pay Period.
(ii) (1) Within ten (10) days following the Date of Termination,
you will receive a lump-sum payment equal in amount to
the result obtained by application of the following
formula: P = (x) times (y) times (z), where:
P = the lump-sum payment;
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(x) = twelve times your monthly base salary;
(y) = the fraction obtained by dividing your annual
incentive compensation which was paid or is
payable to you for the immediately preceding
calendar year by your actual base salary for
such year; and
(z) = 3.0 (if the notice of your termination is
given within 24 months after the occurrence
of a Change In Control, or 2.0 (if the notice
of your termination is given at any time
other than within 24 months after the
occurrence of a Change in Control).
(2) Within ten (10) days following the date that payment is
made to active employees of AKS, you shall receive a
pro-rata payment of the annual incentive payment you
would have received for the year in which your Date of
Termination occurs. Such payment shall be: (A) pro-
rated based upon your Date of Termination and (B)
determined without giving effect to any contrary
provision of the applicable incentive plan, and without
giving effect to any reduction in such annual incentive
payment that could result from any amendment to or
termination of such annual incentive plan or a
reduction in your level of participation in connection
with a Change In Control. For purposes of this
calculation, a termination for Good Reason under
Section 4(d) or after a Change In Control under Section
4(e) shall not be considered a voluntary termination
under the annual incentive plan. If the plan is amended
or terminated subsequent to a Change In Control such
that a pro-rated payment cannot be calculated, then you
shall receive the maximum payment, at your level of
participation prior to the Change In Control, pro-rated
based upon your Date of Termination.
(3) Without giving effect to any contrary provision of the
applicable long-term incentive plan, you shall receive:
(A) payment for the prior year's performance under the
plan at the same time as all other participants receive
such payments, and (B) an additional amount equal to
the amount in (A) within sixty (60) days of your Date
of Termination. If the amount in (A) has not yet been
paid at your Date of Termination, you shall receive an
amount equal to two times the amount in (A) at the next
long-term incentive payment date or within sixty (60)
days of your Date of Termination, whichever is earlier.
For purposes of this calculation, a termination for
Good Reason under Section 4(d) or after a Change In
Control under Section 4(e) shall not be considered a
voluntary termination under the long-term incentive
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plan. Such payment shall be determined without giving
effect to any reduction in such long-term incentive
payment that could result from any amendment to or
termination of such plan or a reduction in your level
of participation in connection with a Change In
Control. If the plan is amended or terminated such that
no calculation of the payment in (A) above for the
prior year's performance can be made, then you shall
receive twice the maximum payment in cash, at your
level of participation prior to the Change In Control,
in full payment of the amounts in (A) and (B) above.
(iii) Notwithstanding any provision to the contrary in the AK Steel
Holding Corporation Stock Incentive Plan as amended or any
other similar plan of AKS or Holding (each, a "Plan"), or
under the terms of any grant, award agreement or form for
exercising any right under the Plan, you shall have the
right:
(1) to exercise any stock option awarded to you under the
Plan without regard to any waiting period required by
the Plan or award agreement (but subject to a minimum
six month holding period from the date of award and any
restrictions imposed by law) from the first day of your
Notice Period until the first to occur of the third
anniversary of your Date of Termination or the date the
award expires by its terms, and
(2) to the absolute ownership of any shares of stock
granted to you under the Plan, free of any restriction
on your right to transfer or otherwise dispose of the
shares (but subject to a minimum six month holding
period from the date of grant and any restrictions
imposed by law), regardless of whether entitlement to
the shares is contingent or absolute by the terms of
the grant; and Holding and AKS shall take such action
within the Notice Period as is necessary or appropriate
to eliminate any restriction on your ownership of, or
your right to sell or assign, any such shares; or AKS
shall pay you, in exchange for such shares, no later
than ten (10) days after the Date of Termination, an
amount in cash equal to the greatest aggregate market
value of the shares during the Notice Period.
You agree, for a period of six (6) months after your
Termination Date, to continue to comply with all AKS and
Holding policies and directives related to trading in Holding
stock which were in effect prior to your notice of
termination. If your compliance with such policies and
directives precludes you from exercising any stock options or
selling any shares of stock described in paragraphs (1) and
(2) above for a period of more than sixty (60) days from the
first day of your Notice Period, then AKS will pay you in
cash the
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difference between the average share price during the Notice
Period and, if less, the actual share price received by you
at the time of sale provided you have completed such sale
within sixty (60) days from your first opportunity to do so.
The average sale price during the Notice Period will be
determined by averaging the highest share price and the
lowest share price during the Notice Period. Any such
differential payment will be paid to you within thirty (30)
days after you provide written notice to AKS requesting such
payment. Such notice is to be directed to the attention of
the Secretary of AKS and contain the relevant stock
transaction dates and actual share price information.
(iv) During the Severance Pay Period your Employment Benefits
shall be continued, subject to the right of AKS to make any
changes to your Employment Benefits permitted in accordance
with Section 2; provided, however, that you shall not:
(1) accumulate vacation pay for periods after the Date of
Termination;
(2) first qualify for sickness and accident, salary
continuation, and long-term disability plan benefits by
reason of an accident occurring or a sickness first
manifesting itself after the Date of Termination;
(3) be eligible to continue to make contributions to any
Internal Revenue Code (S) 401(k) plan maintained by AKS
or qualify for a share of any employer contribution
made to any tax-qualified defined contribution plan; or
(4) be eligible to accumulate service for pension plan
purposes; and
provided, further, that if, during the Severance Pay Period,
you are (and for so long as you remain) employed by any other
employer, the obligations of AKS to continue to provide you
with life insurance, medical, hospital and other health
insurance benefits shall be limited solely to those benefits
necessary to assure that, together with the corresponding
benefits provided to you under any other plans, you receive
total benefits comparable to those to which you were entitled
at the Date of Termination.
(v) You shall qualify for full COBRA health benefit continuation
coverage upon the expiration of the Severance Pay Period.
(vi) You shall be entitled, at no cost to you, to up to twelve
(12) months of full executive outplacement assistance with an
agency selected by AKS.
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(b) You shall receive payment of your benefit under the AK Steel
Corporation Executive Minimum and Supplemental Retirement Plan (the
"SERP") in accordance with the provisions of the SERP.
Notwithstanding the foregoing, if your employment with AKS is
involuntarily terminated by AKS without Cause in accordance with
Section 4(a), or if at any time after a Change In Control you
voluntarily terminate your employment with AKS (or any Affiliate,
any successor of AKS, or any entity which as a result of the
completion of the transactions causing a Change In Control becomes
affiliated with AKS) for Good Reason (as defined in Section 4(d)) or
after a Change In Control in accordance with Section 4(e), within
ten (10) days following the Date of Termination you will receive, in
addition to any benefits you may be entitled to under Section 5(a)
above, a lump sum payment in an amount equal to the benefit you
would be entitled to under the SERP determined as if (i) your
Vesting Date (as defined under the SERP) had occurred prior to the
Date of Termination (if it has not already occurred as of the Date
of Termination) and (ii) you had attained age 60 prior to the Date
of Termination (if you have not already attained age 60 as of the
Date of Termination). The amount of any such additional benefit
shall be calculated as of the Date of Termination in accordance with
the benefit formula under the SERP (as if you had attained age 60,
or your actual age if greater), and the payment of such benefit
shall be in lieu of any payment under the SERP.
(c) You shall receive payment of your account under the AK Steel
Corporation Deferred Compensation Plan (the "DCP") in accordance
with provisions of the DCP. Notwithstanding the foregoing, voluntary
termination of your employment with AKS for Good Reason under
Section 4(d) or Section 4(e) shall not be considered a voluntary
termination under the DCP. Accordingly, if you terminate your
employment with AKS for Good Reason under Section 4(d) or after a
Change In Control under Section 4(e), you will be fully vested in
the interest credited to your account under the DCP and will be paid
your entire account at such time as provided under the DCP.
(d) You shall not be required to mitigate the amount of any payment
provided for in this Section 5 by seeking other employment or
otherwise, nor shall the amount of any payment or benefits provided
for in this Section 5 be reduced by any compensation or benefits
earned by you as the result of employment by another employer
(except as expressly provided in Section 5(a)(iv) above) or by
retirement benefits, or be offset against any amount claimed to be
owed by you to AKS or any of its Affiliates or successors.
(e) For purposes of calculating any amount due under this Agreement the
effect of any deferral of income shall be disregarded and all sums
due shall be calculated as if no such deferral had been made.
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6. Certain Tax Matters
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(a) If any of the payments provided to you pursuant to Section 5 hereof
(the "Contract Payments") or any other portion of the Total Payments
(as defined below) becomes subject at any time to the tax (the
"Excise Tax") imposed by section 4999 of the Internal Revenue Code
of 1986, as amended (the "Code"), AKS shall pay to you at the time
specified in section 6(b) below, an additional amount (the "Gross-Up
Payment") such that the net amount retained by you, after deduction
of the Excise Tax on any Contract Payments and/or other Total
Payments, any federal and state and local income tax and Excise Tax
upon the payment(s) provided for by this paragraph, and any
interest, penalties or additions to tax payable by you with respect
thereto, shall be equal to the present value of the Contract
Payments and such other Total Payments. For purposes of determining
whether any of the foregoing payments will be subject to the Excise
Tax and the amount of such Excise Tax, (i) any other payments or
benefits received or to be received by you in connection with a
Change In Control or the termination of your employment (whether
such payments are Contract Payments or are payable pursuant to the
terms of any other plan, arrangement or agreement with AKS, Holding
or any of their respective Affiliates or successors, any person
whose actions result in a Change In Control or any corporation
which, as a result of the completion of the transactions causing a
Change In Control, will become affiliated with AKS or Holding within
the meaning of section 1504 of the Code (such other payments,
together with the Contract Payments, the "Total Payments")) shall be
treated as "parachute payments" within the meaning of section
28OG(b)(2) of the Code, and all "excess parachute payments" within
the meaning of section 28OG(b)(1) shall be treated as subject to the
Excise Tax, except to the extent that, in the opinion of tax counsel
selected by AKS' independent auditors and acceptable to you ("Tax
Counsel"), the Total Payments (in whole or in part) do not
constitute parachute payments, or such excess parachute payments are
otherwise not subject to the Excise Tax, (ii) the amount of the
Total Payments that shall be treated as subject to the Excise Tax
shall be equal to the lesser of (1) the total amount of the Total
Payments or (2) the amount of excess parachute payments within the
meaning of sections 28OG(b)(1) (after applying clause (i) hereof),
and (iii) the value of any noncash benefits or any deferred payment
or benefit shall be determined by AKS' independent auditors in
accordance with the principles of sections 28OG(d)(3) and (4) of the
Code. For purposes of determining the amount of the Gross-Up
Payment(s), you shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation applicable to
individuals in the calendar year in which the Gross-Up Payment(s) is
(are) to be made and state and local income taxes at the highest
marginal rates of taxation applicable to individuals as are in
effect in the state and locality of your residence in the calendar
year in which the Gross-Up Payment(s) is (are) to be made, net of
the maximum reduction in federal income taxes that could be obtained
from deduction of such state and local taxes. In the event that the
Excise Tax is subsequently determined to be less than the amount
taken into account
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hereunder, you shall repay to AKS at the time that the amount of
such reduction in Excise Tax is finally determined the portion of
the Gross-Up Payment attributable to such reduction (plus the
portion of the Gross-Up Payment attributable to the Excise Tax and
federal and state and local income tax imposed on the Gross-Up
Payment being repaid by you if such repayment results in a federal
and state and local income tax deduction), plus interest on the
amount of such repayment at the applicable federal rate (as defined
in section 1274(d) of the Code). In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder
(including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-up Payment), AKS shall
make an additional gross-up payment in respect of such excess (plus
any interest payable with respect to such excess) at the time that
the amount of such excess is finally determined.
(b) The Gross-up Payment(s) provided for in section 6(a) above shall be
made not later than the tenth day following the Date of Termination
or, with respect to any portion of the Excise Tax not determined on
or before such date to be due, upon the imposition of such portion
of the Excise Tax; provided, however, that if the amounts of such
payments cannot be finally determined on or before such date, AKS
shall pay to you on such day an estimate, as determined in good
faith by AKS, of the minimum amount of such payments and shall pay
the remainder of such payments (together with interest at the rate
provided in section 1274(b)(2)(B) of the Code) as soon as the amount
thereof can be determined but in no event later than the thirtieth
day after the Date of Termination. In the event that the amount of
the estimated payments exceeds the amount subsequently finally
determined to have been due, such excess shall constitute a loan by
the Corporation to you, payable on the tenth day after demand by the
Corporation (together with interest at the rate provided in section
1274(b)(2)(B) of the Code).
(c) In the event of any change in, or further interpretation of,
sections 28OG or 4999 of the Code and the regulations promulgated
thereunder, you shall be entitled, by written notice to AKS, to
request an opinion of Tax Counsel regarding the application of such
change to any of the foregoing, and AKS shall use its best efforts
to cause such opinion to be rendered as promptly as practicable. All
fees and expenses of Tax Counsel incurred in connection with this
Agreement shall be borne by AKS.
7. Definitions
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For purposes of this Agreement the following terms shall have the following
meanings:
(a) "Affiliate" of any specified person means (i) any other person
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which, directly or indirectly, is in control of, is controlled by or
is under common control with such specified person or (ii) any other
person who is a director of officer (1) of such specified person,
(2) of any subsidiary of such specified person or (3) of any person
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described in clause (i) above. For purposes of this definition,
control of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person
whether by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
(b) "Change In Control" means the occurrence of any of the following
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events:
(i) any "Person" (as such term is used in Sections 13(d) and
14(d) of Securities Exchange Act of 1934, as amended (the
"Exchange Act"), is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial
ownership" of all shares that any such Person has the right
to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of
more than 40% of the total voting power of the Voting Equity
Interests of Holding; provided, however, that a Person shall
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not be deemed the "beneficial owner" of shares tendered
pursuant to a tender or exchange offer made by that Person or
any Affiliate of that Person until the tendered shares are
accepted for purchase or exchange;
(ii) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board
(together with any new directors whose election by such
Board, or whose nomination for election by the shareholders
of Holding, as the case may be, was approved by a vote of 66-
2/3% of the directors then still in office who were either
directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board then in
office; or
(iii) Holding fails to own 100% of the outstanding stock of AKS;
provided, however, that it shall not be deemed a Change in
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Control if Holding merges into AKS except that, in such case,
AKS shall be substituted for Holding for purposes of this
definition of "Change in Control" and this clause (iii) shall
not longer be applicable.
(c) "Voting Equity Interests" of a corporation means all classes of
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stock then outstanding and normally entitled to vote in the election
of directors or other governing body of such corporation.
8. Benefits Upon Voluntary Termination or Termination for Cause
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Upon your Date of Termination for Cause in accordance with Section 4(b) or
your Date of Termination without Good Reason in accordance with Section
4(c), all benefits under this
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Agreement will be void, but you nevertheless shall be eligible for any
benefits provided in accordance with the plans and practices of AKS which
are applicable to employees generally.
9. Arbitration
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Any dispute under this Agreement (except for disputes arising under
Sections 10 and 12 below) shall be submitted to binding arbitration subject
to the rules of the American Arbitration Association. Except as
hereinafter provided, AKS and you shall each bear your own attorney's fees
and shall share equally the cost of arbitration. However, if you prevail
in a challenge by you to AKS' assertion of the existence of Cause for
termination or in a challenge by AKS to your assertion of the existence of
Good Reason for termination, you shall be reimbursed by AKS for all
reasonable costs or expenses incurred by you in such challenge, including
reasonable attorney's fees.
10. Confidentiality
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You will not disclose to any person or use for the benefit of yourself or
any other person any confidential or proprietary information of AKS without
the prior written consent of an elected officer of AKS. Upon your
termination of employment, you will return to AKS all written or
electronically stored memoranda, notes, plans, records, reports or other
documents of any kind or description (including all copies in any form
whatsoever) relating to the business of AKS.
11. Conflicts of Interest
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You agree for so long as you are employed by AKS to avoid dealings and
situations which would create the potential for a conflict of interest with
AKS. In this regard, you agree to comply with the AKS policy regarding
conflicts of interest.
12. Covenant Not to Compete
-----------------------
During the term of this Agreement and for a period of one year following
your Date of Termination for any reason, you agree not to be employed by,
or serve as director of or consultant or advisor to, any business engaged
directly or indirectly in the melting, hot rolling, cold rolling, or
coating of carbon, electrical or stainless steel, or in the manufacturing
of steel pipe and tubing products, or that is reasonably likely to engage
in such business during the one-year period following your termination of
employment; provided however, if a Change in Control occurs, the foregoing
-------- -------
restriction applicable to the one year period following your Date of
Termination shall lapse and be null and void.
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13. Notice
------
Notices required or permitted under this Agreement shall be in writing and
shall be deemed to have been given when personally delivered or mailed by
United States certified mail, return receipt requested, postage prepaid,
addressed to the intended recipient at its or his address first above
written. Notices to AKS shall be marked for the attention of the Chief
Executive Officer of AKS.
14. Modification; Waiver
--------------------
No provision of this Agreement may be waived, modified or discharged except
pursuant to a written instrument signed by you and the Chairman of the
Board or the Chief Executive Officer of AKS.
15. Successors; Binding Agreement
-----------------------------
(a) AKS and Holding will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of AKS to expressly
assume and agree to perform this Agreement in the same manner and to
the same extent that AKS would be required to perform it if no such
succession had taken place. Failure of AKS or Holding to obtain such
assumption and agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement.
(b) This Agreement shall inure to the benefit of and be enforceable by
you and your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If you should die while any amount would still be payable
to you hereunder had you continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee,
or, if there is no such devisee, legatee or designee, to your
estate.
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16. Validity; Counterparts
----------------------
This Agreement shall be governed by and construed under the law of the
State of Delaware. The validity or unenforceability of any provision hereof
shall not affect the validity or enforceability of any other provision
hereof. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
Sincerely,
AK STEEL HOLDING CORPORATION
Accepted and agreed to this _____ day
______________, 200__. By:________________________________
____________________________________
(Signature) AK STEEL CORPORATION
__________________________________ By:________________________________
(Name of Employee)
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