EXHIBIT 10.15
AGREEMENT
THIS AGREEMENT (this "Agreement") is effective as of November
1, 2003 (the "Separation Date"), by and between International Steel Group Inc.
(the "Company"), located at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000 and
Xxxxx X. Pole ("Executive"), residing at 0000 Xxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxx
00000.
WITNESSETH:
WHEREAS, prior to the Separation Date, Executive was the Vice
President - Finance & Treasurer of the Company;
WHEREAS, effective on the Separation Date, Executive resigned
as an employee of the Company, and from any and all offices of the Company, and
any other position, office or directorship of any other entity for which
Executive was serving at the request of the Company; and
WHEREAS, the Company accepts Executive's resignation as of the
date referenced above; and
WHEREAS, the Company and Executive desire to set forth the
payments and benefits that Executive will be entitled to receive from the
Company in connection with his resignation from employment with the Company; and
WHEREAS, the Company and Executive wish to resolve, settle
and/or compromise certain matters, claims and issues between them, including,
without limitation, Executive's resignation from the offices he held and from
his employment with the Company.
NOW, THEREFORE, in consideration of the promises and
agreements contained herein and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, and intending to be
legally bound, the Company and Executive hereby agree as follows:
1. RESIGNATION. Executive hereby resigns, effective on the
Separation Date, his employment with the Company and its subsidiaries and
related or affiliated companies, and his position as Vice President - Finance &
Treasurer of the Company. Executive further resigns, effective on the Separation
Date, from any other directorship, office, or position of the Company or any
entity that is a subsidiary of, or is otherwise related to or affiliated with,
the Company (or to which he has otherwise been appointed). The Company hereby
consents to and accepts said resignations.
2. COMPENSATION AND BENEFITS. Subject to the conditions hereof,
the Company and Executive agree to the following:
x. XXXXXXXXX COMPENSATION. (i) As severance
compensation, the Company shall pay Executive an amount equal to $360,000. Such
amount shall be paid to Executive in equal installments in accordance with the
Company's normal payroll practices for a period of 18
months, with such payments commencing as soon as practicable following
Executive's execution of this Agreement and the expiration of the revocation
period set forth in Paragraph 4.c.(iv) hereof if Executive has not exercised his
right of revocation pursuant to such paragraph prior to such date.
(ii) If for the Company's fiscal year ending December 31,
2003 the Distribution Pool under the Company's Officer Cash and Stock Bonus Plan
(the "Bonus Plan") is a positive number and if all Participants in the Bonus
Plan receive a cash bonus for fiscal year 2003 in accordance with the terms of
the Bonus Plan, the Company shall make a lump sum payment to Executive in an
amount equal to 80% of the amount Executive would have been entitled to receive
under the terms of the Bonus Plan for fiscal year 2003 if Executive had remained
an employee of the Company through December 31, 2003. Such amount shall be paid
to Executive on the date on which payments are made to other Participants in the
Bonus Plan. Capitalized terms used, but not otherwise defined, in this Paragraph
2.a.(ii) shall have the meanings given to such terms in the Bonus Plan.
b. STOCK OPTIONS. Executive was granted 154 stock
options pursuant to the Company's 2002 Stock Option Plan and the agreement
entered into between the Company and Executive with respect to such stock
options effective as of June 28, 2002 (collectively the "Stock Option Plan").
With respect to Executive's stock options, (i) 38.5 of Executive's stock options
vested on April 12, 2003 (the "Vested Options") and (ii) 38.5 of Executive's
stock options shall vest on the date following the expiration of the revocation
period set forth in Paragraph 4.c.(iv) hereof if Executive has not exercised his
right of revocation pursuant to such paragraph prior to such date (the
"Accelerated Options"). Executive's Vested Options and Accelerated Options shall
remain outstanding and exercisable by Executive until the termination of such
options in accordance with the terms of the Stock Option Plan; provided,
however, that if the Company's IPO (as defined in the Stock Option Plan) has not
occurred by January 15, 2004, then the Company shall pay Executive $2,354,429,
and Executive's Accelerated Options shall immediately terminate and not be
exercisable. Executive's remaining 77 stock options that were granted under the
Stock Option Plan shall immediately terminate as of the Separation Date and
shall not be exercisable as of the Separation Date.
c. MEDICAL COVERAGE. Executive shall be entitled to
continue to participate in the Company's medical, dental, accident and life
insurance plans or programs in which he participated immediately prior to the
Separation Date (with a monthly premium cost to Executive equal to the premium
cost as in effect for active employees of the Company with respect to such plans
or programs, as amended or changed from time to time) until the earlier of (i)
Executive's eligibility for any such coverage under another employer's or any
other medical, dental, accident or life insurance plans or programs or (ii) 18
months following the Separation Date (the "Benefit Period"). Executive agrees
that the period of coverage under such plans shall count against such plans'
obligation to provide continuation coverage pursuant to Part 6 of Subtitle B of
Title I of the Employee Retirement Income Security Act of 1974, as amended
("COBRA"). It is expressly understood that the Company's payment obligations and
Executive's participation rights under this Paragraph 2.c. shall cease in the
event Executive breaches any of the agreements in Paragraph 3 hereof.
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d. PROFESSIONAL FEES. The Company and Executive
acknowledge and agree that each shall be responsible for the payment of their
respective legal fees and costs (and related disbursements) incurred in
connection with Executive's resignation and all matters relating to the
negotiation and execution of the releases and all other matters covered by this
Agreement.
e. COMPANY BENEFIT PLANS. Except as provided above in
Paragraph 2.c. of this Agreement, Executive's post-Separation Date eligibility
for benefits, if any, as a past employee of the Company under the Company's
retirement and welfare benefit plans shall be as set forth in the respective
plan documents and shall be based on his employment termination on the
Separation Date, and his entitlement to benefits for the period of his
participation therein shall be determined pursuant to the terms thereof.
f. BUSINESS EXPENSES. The Company will reimburse
Executive for any reasonable business expenses incurred by Executive prior to
the Separation Date that are reimbursable pursuant to the Company's expense
reimbursement policies.
g. ACCRUED SALARY. Executive shall be paid in accordance
with the Company's normal payroll cycle any base salary amount earned but unpaid
as of the Separation Date.
h. WITHHOLDING. The Company shall withhold such amounts
from the payments described herein as are required by applicable tax or other
law.
3. RESTRICTIVE COVENANTS. Executive will be bound by the
following restrictive covenants. If Executive fails to abide by any of the
following covenants, the Company may cease any remaining payments or benefits
payable to Executive hereunder.
a. During the Benefit Period, Executive shall not within
the United States, Canada and/or Mexico (i) engage, directly or indirectly,
whether as an employee, officer, director, consultant or otherwise, in the
research, development, manufacture, marketing, sale or distribution of steel or
steel products similar to those products sold or developed by the Company and/or
any Controlled Group member; (ii) solicit, directly, or indirectly, whether as
an employee, officer, director, consultant or otherwise, any person or entity
which is then a customer of the Company and/or any Controlled Group member or
has been a customer or solicited by the Company and/or any Controlled Group
member in the preceding two (2) year period, to purchase steel or steel products
from any entity other than the Company and/or any Controlled Group member; (iii)
solicit for employment, engage and/or hire, whether directly or indirectly, any
individual who is then employed by the Company and/or any Controlled Group
member or engaged by the Company and/or any Controlled Group Company as an
independent contractor or consultant; and/or (iv) encourage or induce, whether
directly or indirectly, any individual who is then employed by the Company
and/or any Controlled Group member or engaged by the Company and/or any
Controlled Group member as an independent contractor or consultant to end
his/her business relationship with the Company and/or any Controlled Group
member.
b. Executive will keep in strict confidence, and will
not, directly or indirectly, at any time during or after the Benefit Period,
disclose, furnish, disseminate, make available or, except in the course of
performing Executive's duties of employment, use any trade
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secrets or confidential business and technical information of the Company or any
Controlled Group member or their customers or vendors, including without
limitation as to when or how Executive may have acquired such information. Such
confidential information shall include, without limitation, the Company's and
any Controlled Group member's unique selling, manufacturing and servicing
methods and business techniques, training, service and business manuals,
promotional materials, training courses and other training and instructional
materials, vendor and product information, customer and prospective customer
lists, other customer and prospective customer information and other business
information. Executive specifically acknowledges that all such confidential
information, whether reduced to writing, maintained on any form of electronic
media, or maintained in Executive's mind or memory and whether compiled by the
Company, any Controlled Group member and/or Executive, derives independent
economic value from not being readily known to or ascertainable by proper means
by others who can obtain economic value from its disclosure or use, that
reasonable efforts have been made by the Company and the Controlled Group
members to maintain the secrecy of such information, that such information is
the sole property of the Company or the Controlled Group members and that any
retention and use of such information by Executive during the Benefit Period
shall constitute a misappropriation of the Company's or any Controlled Group
member's trade secrets.
c. For purposes of this Paragraph 3, "Controlled Group"
shall mean the Company and any other entity which is a member of the Company's
controlled group (as such term is defined in Sections 414(b) or 414(c) of the
Internal Revenue Code).
4. RELEASE BY EXECUTIVE.
a. Executive for himself and his dependents, successors,
assigns, heirs, executors and administrators (and his and their legal
representatives of every kind), hereby releases, dismisses, remisses and forever
discharges the Company from any and all arbitrations, claims (including claims
for attorney's fees), demands, damages, suits, proceedings, actions and/or
causes of action of any kind and every description, whether known or unknown,
which Executive now has or may have had for, upon, or by reason of any cause
whatsoever (except that this release shall not apply to (x) the obligations of
the Company arising under this Agreement and (y) Executive's rights of
indemnification by the Company, if any, pursuant to the Company's certificate of
incorporation or by-laws or any agreement between the Company and Executive),
against the Company ("claims"), including but not limited to:
(i) any and all claims, directly or indirectly, arising
out of or relating to: (A) Executive's past
employment or service with the Company; and (B) Executive's resignation
as Vice President - Finance & Treasurer of the Company and any other
position described in Paragraph 1 of this Agreement.
(ii) any and all claims of discrimination, including but
not limited to claims of discrimination on the basis of sex, race, age,
national origin, marital status, religion or disability, including,
specifically, but without limiting the generality of the foregoing, any
claims under the Age Discrimination in Employment Act, as amended (the
"ADEA"), Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act of 1990, the Family and Medical Leave
Act of 1993 and Ohio Revised Code Chapter 4112;
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(iii) any and all claims of wrongful or unjust discharge or
breach of any contract or promise, express or implied; and
(iv) any and all claims under or relating to any and all
employee compensation, employee benefit, employee severance or employee
incentive bonus plans and arrangements, all of which Executive agrees
are forfeited upon his resignation; provided that he shall remain
entitled to the amounts and benefits described in Paragraph 2 above.
Executive agrees that he intends to release any and all workers
compensation claims he may have against the Company by this Agreement,
and further agrees to execute any documentation as may be reasonably
required to perfect such release when presented to him by the Company.
b. Executive understands and acknowledges that the
Company does not admit any violation of law, liability or invasion of any of his
rights and that any such violation, liability or invasion is expressly denied.
The consideration provided under this Agreement is made for the purpose of
settling and extinguishing all claims and rights (and every other similar or
dissimilar matter) that Executive ever had or now may have or ever will have
against the Company to the extent provided in this Paragraph 4. Executive
further agrees and acknowledges that no representations, promises or inducements
have been made by the Company other than as appear in this Agreement.
c. Executive further understands and acknowledges that:
(i) The release provided for in this Paragraph 4,
including claims under the ADEA to and including the date of this
Agreement, is in exchange for the additional consideration provided for
in this Agreement, to which consideration he was not heretofore
entitled;
(ii) He has been advised by the Company to consult with
legal counsel prior to executing this Agreement and the release
provided for in this Paragraph 4, has had an opportunity to consult
with and to be advised by legal counsel of his choice, fully
understands the terms of this Agreement, and enters into this Agreement
freely, voluntarily and intending to be bound;
(iii) He has been given a period of twenty-one days to
review and consider the terms of this Agreement, and the release
contained herein, prior to its execution and that he may use as much of
the twenty-one day period as he desires; and
(iv) He may, within seven days after execution, revoke the
release set forth in this Paragraph 4. Revocation shall be made by
delivering a written notice of revocation to the Corporate Manager of
Human Resources at the Company. For such revocation to be effective,
written notice must be actually received by the Corporate Manager of
Human Resources at the Company no later than the close of business on
the seventh day after Executive executes this Agreement. If Executive
does exercise his right to revoke this release, all of the terms and
conditions of the Agreement shall be of no force and effect and the
Company shall have no obligation to satisfy the terms or make any
payment to Executive as set forth in Paragraph 2 of this Agreement.
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d. Executive will never file a lawsuit or other
complaint asserting any claim that is released in this Paragraph 4.
e. Executive and the Company acknowledge that his
resignation is by mutual agreement between the Company and Executive, and that
Executive waives and releases any claim that he has or may have to reemployment.
f. For purposes of the above provisions of this
Paragraph 4, the "Company" shall include its present and former predecessors,
subsidiaries, divisions, related or affiliated companies, officers, directors,
stockholders, members, employees, heirs, successors, assigns, representatives,
agents, accountants and counsel.
5. DISCLOSURE.
a. From the date of this Agreement through the end of
the Benefit Period, Executive will communicate the contents of Paragraphs 3,
6.b., 7 and 9 of this Agreement to any person, firm, association, or corporation
other than the Company which he intends to be employed by, associated in
business with, or represent.
b. Executive shall take no action with respect to the
Company's common stock that is in violation of the federal securities laws.
6. BREACH.
a. If Executive breaches any of the provisions of this
Agreement (and in the case of a breach that is capable of being cured, fails to
cure such breach within fifteen days after written notice by the Company to
Executive specifying the circumstances that constitute such breach), then the
Company may, at its sole option, immediately terminate all remaining payments
and benefits described in this Agreement, including the vesting or
exercisability of any stock options under Paragraph 2.b., and obtain
reimbursement from Executive of all payments and benefits already provided
pursuant to Paragraph 2 of this Agreement, plus any expenses and damages
incurred as a result of the breach (including, without limitation, reasonable
attorneys' fees), with the remainder of this Agreement, and all promises and
covenants herein, remaining in full force and effect. Notwithstanding the
foregoing, the Company will not terminate pursuant to Paragraph 6.a. above any
benefits to which Executive is entitled under any tax-qualified retirement plan
of the Company, and Executive's rights under COBRA, if any, will not be reduced
by any action taken by the Company under Paragraph 6.a. above.
b. Executive acknowledges and agrees that the remedy at
law available to the Company for breach by Executive of any of his obligations
under Paragraphs 3 and 5 of this Agreement would be inadequate and that damages
flowing from such a breach would not readily be susceptible to being measured in
monetary terms. Accordingly, Executive acknowledges, consents and agrees that,
in addition to any other rights or remedies which the Company may have at law,
in equity or under this Agreement, upon adequate proof of Executive's violation
of any provision of Paragraphs 3 or 5 of this Agreement, the Company shall be
entitled to immediate injunctive relief and may obtain a temporary order
restraining any threatened or further breach, without the necessity of proof of
actual damage.
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7. CONTINUED AVAILABILITY AND COOPERATION.
a. Executive shall cooperate fully with the Company, the
Company's counsel and the Company's insurer in connection with any present and
future actual or threatened litigation or administrative proceeding involving
the Company that relates to events, occurrences or conduct occurring (or claimed
to have occurred) during the period of Executive's employment by the Company.
This cooperation by Executive shall include, but not be limited to:
(i) making himself reasonably available for interviews
and discussions with the Company's counsel as well as for depositions
and trial testimony;
(ii) if depositions or trial testimony are to occur,
making himself reasonably available and cooperating in the preparation
therefor as and to the extent that the Company or the Company's counsel
reasonably requests;
(iii) refraining from impeding in any way the Company's
prosecution or defense of such litigation or administrative proceeding;
and
(iv) cooperating fully in the development and presentation
of the Company's prosecution or defense of such litigation or
administrative proceeding.
b. Executive shall be reimbursed by the Company for
reasonable travel, lodging, telephone and similar expenses incurred in
connection with such cooperation, which the Company shall reasonably endeavor to
schedule at times not conflicting with the reasonable requirements of any
employer of Executive, or with the requirements of any third party with whom
Executive has a business relationship permitted hereunder that provides
remuneration to Executive. Executive shall not unreasonably withhold his
availability for such cooperation.
8. SUCCESSORS AND BINDING AGREEMENT.
a. This Agreement shall be binding upon and inure to the
benefit of the Company and any successor of or to the Company, including,
without limitation, any persons acquiring, directly or indirectly, all or
substantially all of the business and/or assets of the Company whether by
purchase, merger, consolidation, reorganization, or otherwise (and such
successor shall thereafter be deemed included in the definition of "the Company"
for purposes of this Agreement), but shall not otherwise be assignable or
delegable by the Company.
b. This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, and/or legatees.
c. This Agreement is personal in nature and none of the
parties hereto shall, without the consent of the other parties, assign, transfer
or delegate this Agreement or any rights or obligations hereunder except as
expressly provided in Subparagraphs (a) and (b) of this Paragraph 8.
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d. This Agreement is intended to be for the exclusive
benefit of the parties hereto, and except as provided in Subparagraphs (a) and
(b) of this Paragraph 8, no third party shall have any rights hereunder.
9. NON-DISCLOSURE; STATEMENTS TO THIRD PARTIES.
a. Except as otherwise provided in Paragraph 5, all
provisions of this Agreement and the circumstances giving rise hereto are and
shall remain confidential and shall not be disclosed to any person not a party
hereto (other than (i) Executive's spouse, if any and (ii) each party's
attorney, financial advisor and/or tax advisor to the extent necessary for such
advisor to render appropriate legal, financial and tax advice), except as
necessary to carry out the provisions of this Agreement, and except as may be
required by law. Notwithstanding the foregoing, this Agreement may be disclosed
and described as well as filed with or provided to the Securities and Exchange
Commission or any other governmental instrumentality or agency, including the
Internal Revenue Service, if the Company deems such filing or provision to be
necessary.
b. Because the purpose of this Agreement is to settle
amicably any and all potential disputes or claims among the parties, neither
Executive nor the Company shall, directly or indirectly, make or cause to be
made any statements to any third parties criticizing or disparaging the other or
commenting on the character or business reputation of the other. Executive
further hereby agrees not: (i) to comment to others concerning the status, plans
or prospects of the business of the Company, or (ii) to engage in any act or
omission that would be detrimental, financially or otherwise, to the Company, or
that would subject the Company to public disrespect, scandal, or ridicule. For
purposes of this Subparagraph 9.b., the "Company" shall mean the Company and its
directors, officers, predecessors, parents, subsidiaries, divisions, and related
or affiliated companies, officers, directors, stockholders, members, employees,
heirs, successors, assigns, representatives, agents, accountants and counsel.
10. LOCKUP AGREEMENT. Notwithstanding any other provision of this
Agreement to the contrary, the Company shall not be required to take any action
or make any payment under this Agreement if such action or payment would result
in a violation of the terms of that certain lockup agreement, by and among
Xxxxxxx, Xxxxx & Co., UBS Securities LLC and Executive, dated as of September
30, 2003.
11. NOTICES. For all purposes of this Agreement, all
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered, addressed to the Company (to the attention
of Xxxxx X. Xxxxx, Corporate Manager of Human Resources) at its principal
executive offices and to Executive at his principal residence, 0000 Xxxx Xxxxx
Xxxxx, Xxxxxxxxx, Xxxx 00000, or to such other address as any party may have
furnished to the other in writing and in accordance herewith. Notices of change
of address shall be effective only upon receipt.
12. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in writing signed by Executive and the Company. No waiver by either party hereto
at any time of any breach by the other party hereto or compliance with any
condition or provision of this Agreement to be
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performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, expressed or implied with
respect to the subject matter hereof have been made by any of the parties that
are not set forth expressly in this Agreement and every one of them (if, in
fact, there have been any) is hereby terminated without liability or any other
legal effect whatsoever.
13. ENTIRE AGREEMENT. This Agreement embodies the complete
agreement and understanding between the parties with respect to the subject
matter hereof and effective as of its date supersedes and preempts any prior
understandings, agreements or representations by or between the parties, written
or oral (including without limitation, the Executive Severance Pay Plan, any
employment agreement between Executive and the Company, whether written or oral)
and the Officer Cash and Stock Bonus Plan), which may have related to the
subject matter hereof in any way.
14. GOVERNING LAW. Any dispute, controversy, or claim of whatever
nature arising out of or relating to this Agreement or breach thereof shall be
governed by and under the laws of the State of Ohio. The parties agree that any
and all disputes, controversies, or claims of whatever nature arising out of or
relating to this agreement or breach thereof shall be resolved by a court of
general jurisdiction in the State of Ohio, and the parties hereby consent to the
exclusive jurisdiction of such court in any action or proceeding arising under
or brought to challenge, enforce, or interpret any of the terms of this
Agreement.
15. VALIDITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall nevertheless remain in full force and
effect.
16. COUNTERPARTS. 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 shall constitute one and the same Agreement.
17. CAPTIONS AND PARAGRAPH HEADINGS. Captions and Paragraph
headings used herein are for convenience and are not part of this Agreement and
shall not be used in construing it.
18. FURTHER ASSURANCES. Each party hereto shall execute such
additional documents, and do such additional things, as may reasonably be
requested by the other party to effectuate the purposes and provisions of this
Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date set forth below.
INTERNATIONAL STEEL GROUP INC.
By: /s/ Xxxxxx Xxxx
----------------------------
Name: Xxxxxx X. Xxxx
Title: President and CEO
Date: 11/11/03
/s/ Xxxxx Pole
--------------------------------
XXXXX X. POLE
Date: 11/11/03
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