Exhibit 10.23
EMPLOYMENT AGREEMENT
AGREEMENT made as of the date written below by and between
WEIRTON STEEL CORPORATION, a Delaware corporation with its principal executive
offices located at Xxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxx Xxxxxxxx 00000
(hereinafter called the "Corporation") and the individual employee whose name
and address appear on the signature page hereto (hereinafter called "Employee").
The parties hereto agree as follows:
First: Term and Duties: The term of this Agreement shall
commence on the date hereof and shall continue until terminated in accordance
with Paragraph Second. During the term hereof, Employee shall serve as a
full-time, salaried employee of the Corporation and shall diligently discharge
the duties and responsibilities appropriate to his position. Employee's duties,
title, salary and other benefits shall be as agreed upon from time to time
between Employee and the Corporation.
Second: Eligibility for Termination Benefits: (a) Subject to
subparagraph (e) of Paragraph Third, if Employee's employment with the
Corporation is terminated by the Corporation without just cause, Employee shall
receive such benefits hereunder ("Termination Benefits") as determined in
accordance with Paragraph Third, provided Employee, if requested, remains in the
employment of the Corporation for a period not exceeding 60 days following
receipt of a written notice of such termination. For purposes of this Agreement,
termination of Employee's employment by the Corporation shall constitute a
termination for "just cause" only if such termination is for misfeasance,
malfeasance or nonfeasance in the performance of his duties or for conviction of
an offense involving moral turpitude. Except as otherwise specifically set forth
in this Agreement or as otherwise provided by law, all rights of Employee, and
all obligations of the Corporation under this Agreement, shall cease and
terminate on, and as of, the date of termination of employment for just cause.
(b) The Corporation shall be deemed to have agreed to a
termination without just cause in accordance with subparagraph (a) of this
Paragraph Second from and after the date (i) the Employee is assigned duties or
responsibilities significantly inconsistent with and less than the Employee's
position, duties, responsibilities or status with the Corporation as in effect
upon execution of this Agreement, (ii) the Employee's base salary, excluding any
bonus or other compensation derived from any employee benefit plan, is ever
reduced below any level attained by the Employee, or (iii) the Employee is
required to reside more than fifty miles from Weirton, West Virginia in order to
perform his duties for the Corporation; provided, that such action is taken
without the Employee's express written consent or waiver, and within 30 days
after the occurrence of any such event the Employee notifies the Corporation
that he is so deeming the Corporation to have elected to terminate his
employment, whereupon the Corporation shall be deemed to have terminated such
employment as of the date of any such action or the date of such notice at the
option of the Employee. If the date of termination is deemed to be a date
earlier than the date of such notice, and the Corporation, upon receipt of such
notice, promptly takes all
actions hereunder required in the event of such termination, no intervening
delay in taking such actions may be construed as a violation of this Agreement.
Third: Amount and Duration of Termination Benefits:
(a) Upon the termination of Employee's employment on any
date in accordance with Paragraph Second (the "Termination Date"), Employee
shall be treated as being an inactive employee for 24 months following the
Termination Date, and Employee shall receive, within 10 days of the Termination
Date, a total of 24 months base salary (excluding vacation or special pay) in
effect at the Termination Date (the "Lump Sum Payment"), calculated as follows,
where:
X is 24 months of Employee's base salary; and
Y is any applicable federal, state or local tax or liability
imposed on Employee as a result of the Lump Sum Payment,
including, without limitation, social security taxes,
income taxes and excise taxes, which amount shall be
withheld by Corporation and paid by Corporation to the
appropriate agency for and on behalf of Employee.
Then, LUMP SUM PAYMENT = X + Y (BUT IN NO EVENT SHALL SUCH
PAYMENT EXCEED 36 MONTHS BASE SALARY).
It is the intent (in so far as practical, subject to the 36 month base salary
limitation) of the parties that the foregoing Lump Sum Payment calculation shall
result in Employee's receipt of an amount equal to 24 months of Employee's base
salary net of all applicable federal, state and local taxes, and Corporation's
payment to the appropriate taxing authority of any applicable federal, state or
local tax or liability imposed on Employee. Furthermore, for a period of 24
months following the Termination Date, the Corporation shall (i) continue to
provide coverage for Employee and applicable dependents under all benefit plans
of the Corporation providing life insurance or health, disability,
hospitalization and major medical insurance at such levels as are not less than
those in effect at the time of the Termination Date; and (ii) to the extent
allowable under applicable law, cause Employee to continue to earn service
credit for all purposes under any pension or retirement plan maintained by the
Corporation in which Employee participated at the time of the Termination Date;
provided, however, that the coverage referred to in clause (i) (except for
coverage under the Executive Health Care Program) shall be suspended during any
period in which and to the extent Employee is eligible for similar coverage
under another employer plan unless such suspension would violate the terms of
any such plan. For all other purposes, Employee's active employment shall
terminate on the Termination Date.
(b) In the event Employee's employment is terminated by
the Corporation prior to the end of any fiscal year without just cause, Employee
shall receive his accrued bonus, earned or accrued pursuant to the terms of any
management incentive or bonus program if any, and the bonus to which Employee
would have otherwise been entitled, if any, for the fiscal year
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in which termination occurs shall be pro rated by multiplying the bonus amount
by a fraction, the numerator of which is the number of days elapsed in the
fiscal year up to and including the date termination becomes effective and the
denominator is 365. If Employee's employment is terminated for just cause or by
Employee, no bonus shall be paid with respect to the fiscal year in which such
termination occurs. If Employee's employment is terminated without just cause by
the Corporation within 365 days following a change of control (as defined in
Paragraph Eighth hereof), employee shall receive the full amount of any bonus
which he would have earned had he remained in the employ of the Corporation,
including any retention bonus and/or management incentive bonus.
(c) Nothing in paragraph (a) of this Paragraph Third
shall be construed to require the Corporation to maintain any employee or
management benefit program solely for the purpose of covering or providing
benefits to Employee.
(d) The Corporation shall promptly reimburse Employee for
the reasonable legal fees and expenses incurred by Employee in connection with
enforcing any right of Employee pursuant to subparagraph (a) or (b) of Paragraph
Second, subparagraph (a) or (b) of this Paragraph Third or Paragraph Tenth;
provided, however, that the Corporation will only reimburse Employee for such
legal fees and expenses if, in connection with enforcing any right of Employee
pursuant to this Agreement, either (i) a judgment has been rendered in favor of
Employee by an arbitrator or a duly authorized court of law, or (ii) the
Corporation and Employee have entered into a settlement agreement providing for
the payment to Employee of any or all amounts due hereunder.
(e) Notwithstanding any other provision of this
Agreement, if the Employee's employment with the Corporation is terminated for
any reason and (i) the Employee has attained 65 years of age, (ii) for the
2-year period immediately prior to such termination the Employee is employed in
a bona fide executive or a high policy-making position and (iii) the Employee is
entitled to an immediate nonforfeitable annual retirement benefit from a
pension, profit-sharing, savings, or deferred compensation plan, or any
combination of such plans, of the Corporation, which equals in the aggregate, at
least $44,000, the Employee will not be entitled to any Termination Benefits
hereunder.
Fourth: Confidentiality and Transfer of Intellectual Property
Rights and Interests:
(a) Employee shall not, during the term hereof or
subsequent to the Termination Date, divulge, furnish or make accessible to
anyone (otherwise than as consented to by the Corporation) any knowledge or
information, techniques, plans, trade or business secrets or confidential
information relating to the business secrets or confidential information
relating to the business of the Corporation or with respect to any other
confidential or secret aspect of the business of the Corporation, nor shall
Employee make any use of the same for his own purposes or for the benefit of
anyone under any circumstances; provided that, after the Termination Date, these
restrictions shall not apply to such knowledge, techniques, plans, trade or
business secrets or confidential information which is then in, or subsequently
becomes part of, the public domain, except because of disclosure by Employee
without the Corporation's consent.
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(b) Employee shall immediately, upon termination and
demand by the Corporation, assign, transfer and convey to the Corporation any
and all copyright, patent and intellectual property rights and like interests
which are obtained by Employee during the term of his employment with
Corporation and which relate to methods, apparatus, designs, products, processes
or devices, sold, leased, used or under consideration or development by the
Corporation, or which otherwise relate to or pertain to the business, functions
or operations of the Corporation. Employee shall execute any and all forms,
documents and acknowledgments prepared by the Corporation for the purpose of
assigning, transferring and conveying such copyright, patent and intellectual
property rights and like interests.
(c) For the period commencing on the Termination Date and
continuing for one year thereafter, the Employee will not, in any form,
disparage the Corporation, its officers or directors or otherwise make comment
adverse to the Corporation concerning any aspect of the business or practices,
past or then present, of the Corporation.
(d) It is the desire of the parties that the provisions
of this Paragraph Fourth be enforced to the fullest extent permissible under the
laws and public policies in each jurisdiction in which enforcement might be
sought. Accordingly, if any particular portion of this Paragraph Fourth be
adjudicated as invalid or unenforceable, this Paragraph Fourth shall be deemed
amended to delete therefrom such portion so adjudicated, such deletion to apply
only with respect to the operation of this Paragraph Fourth in the particular
jurisdiction so adjudicating. If there is a breach or threatened breach of this
Paragraph Fourth by Employee, the Corporation shall be entitled to an injunction
restraining Employee from such breach, but nothing herein shall be construed as
prohibiting the Corporation from pursuing any other remedies for such breach or
threatened breach.
Fifth: Disability: If Employee is unable to render full-time
services to the Corporation of the character required to perform the duties of
his employment with the Corporation with reasonable efficiency for a period of
six consecutive months, commencing after the date hereof, by reason of illness,
disability or incapacity and the Corporation terminates Employee's employment
thereafter, Employee shall not be entitled to any Termination Benefits
hereunder; provided, that this Paragraph Fifth shall not apply in any case where
Employee, upon such termination, does not qualify under any program of long-term
disability benefits provided by the Corporation.
Sixth: Waiver of Breach: A waiver by the Corporation or
Employee of a breach of any provision of this Agreement by the other party shall
be in writing and shall not operate or be construed as a waiver of any
subsequent breach by the other party.
Seventh: Entire Agreement: This Agreement contains the entire
understanding and agreement between the parties and cannot be amended, modified
or supplemented in any respect, except by an agreement in writing signed by the
party against whom enforcement of any amendment, modification or supplement is
sought.
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Eighth: Successors and Assigns: This Agreement shall inure to
the benefit of and be binding upon the Corporation and its successors and
assigns including, without limitation, any corporation or other entity which may
acquire all or substantially all of the capital stock, assets and/or business of
the Corporation or with or into which the Corporation may be consolidated or
merged ("Change of Control"), and Employee, his heirs, executors, administrators
and legal representatives.
Ninth: Governing Law: This Agreement shall be governed by the
laws of the State of Delaware, without regard to its principals of conflicts of
laws.
Tenth: Arbitration: Any dispute between the Employee and the
Corporation arising under this Agreement, whether or not a case or controversy,
shall be resolved solely by binding arbitration in Pittsburgh, Pennsylvania in
accordance with the rules of the American Arbitration Association, and judgment
upon any award may be entered in any court having jurisdiction thereof.
Eleventh: Severability: If any provision of this Agreement or
the application thereof to any circumstance shall to any extent be held invalid
or unenforceable, the remainder of this Agreement shall not be affected thereby,
and shall be valid and enforceable to the fullest extent permitted by law, but
only if and to the extent such enforcement would not materially and adversely
frustrate the parties' essential objectives as expressed herein.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day written below.
WEIRTON STEEL CORPORATION
Date: By:
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Title:
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EMPLOYEE:
Date: Name:
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Address:
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