Exhibit 10(A)
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT is dated and effective as of the 4th day of
March, 2001 ("Effective Date"), and is by and between National Steel
Corporation, a Delaware corporation (the "Company"), and Xxxxxxx Xxxxxx
("Executive"). In consideration of the mutual covenants contained herein, and
other good and valuable consideration (including the Termination Benefits and
the Special Termination Benefits) the receipt and adequacy of which the Company
and Executive each hereby acknowledges, the Company and Executive hereby agree
as follows:
1. Employment and Term
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The Company hereby agrees to employ Executive as the Chief Executive
Officer of the Company and Executive hereby agrees to accept such employment and
serve in such capacity on a full-time basis during the Term and upon the terms
and conditions set forth in this Employment Agreement (this "Agreement").
Executive shall report solely to the Company's Board of Directors, and will have
such responsibilities, duties and authorities as are customary for such
positions in a publicly held company of the size, type and nature of the Company
as they may exist from time to time. The term of employment of Executive under
this Agreement shall be the period commencing on the Effective Date and
terminating on February 29, 2004 (the "Term"). The respective rights and
obligations of the parties hereunder shall survive any termination of employment
to the extent necessary to achieve the intended preservation of rights and
obligations.
2. Salary and Annual Incentive Compensation.
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Executive's annual base salary as in effect on the Effective Date shall be
the Executive's annual base salary hereunder as of the Effective Date, payable
in consecutive equal monthly installments. The term "base salary" as utilized in
this Agreement shall refer to the then current base salary as adjusted from time
to time. Executive's annual base salary shall be reviewed periodically in
accordance with the Company's compensation policies and practices for senior
executives, and may be increased from time to time in accordance with such
policies and practices, but shall not be decreased. Executive shall also be
eligible to receive annual incentive compensation pursuant to the Company's
Management Incentive Compensation Program or any successor plan (the "MICP")
during the Term and as determined in accordance with the terms and conditions of
the MICP. Executive's MICP target annual incentive compensation for 2001 shall
be 50% of base salary, multiplied by a fraction, the numerator of which shall be
the number of days employed by the Company in 2001, and the denominator of which
shall be 365. The Company will maintain in effect, for each year during the
Term, the MICP or an equivalent plan under which Executive will be eligible for
an award not less than the prior year opportunity level available to Executive.
Any such annual incentive compensation payable to Executive shall be
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paid in accordance with the Company's usual practices with respect to payment of
incentive compensation of senior executives.
3. Benefit and Compensation Plans.
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(a) Executive shall be entitled during the Term to participate in all
executive compensation plans, and other employee and executive benefits,
practices, policies and programs of the Company, as presently in effect or as
they may be modified or added to by the Company from time to time ("Benefit
Plans").
(b) During the Term, the Company will provide Executive with coverage by
Company-paid group or individual life insurance or a combination thereof, all in
accordance with the plans, policies, programs and arrangements as presently in
effect or as they may be modified or added to by the Company from time to time.
(c) During the Term, Executive will participate in the Company's Executive
Deferred Compensation Plan, and any supplemental retirement plans, benefits,
practices, programs, or policies of the Company, as in effect on the Effective
Date or as they may be modified or added to by the Company from time to time
("Compensation Plans").
4. Non-Compete Agreement.
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Executive hereby agrees that if Executive terminates his employment with
the Company without Good Reason, then for a period of two (2) years after the
Date of Termination, but in any event only as long as the Company satisfies its
obligations under this Agreement (the "Restricted Period"), Executive will not
engage (either as owner, investor, partner, stockholder, employer, employee,
consultant, advisor or director) in any "Competitive Business" in the
continental United States (the "Territory"). The term "Competitive Business"
means the making, producing, manufacturing or finishing of steel products which
products are in direct competition with steel products that are made, produced,
manufactured or finished by the Company on the Date of Termination. It is agreed
that the ownership of not more than one percent of the equity securities of any
company having securities listed on an exchange or regularly traded in the over-
the-counter market shall not be deemed inconsistent with this Section 4. If any
court of competent jurisdiction shall deem any obligation of this Section 4 too
lengthy or the Territory too extensive, the other provisions of this Section
shall nevertheless stand, the Restricted Period shall be deemed to be the
longest period such court deems not to be too lengthy and the Territory shall be
deemed to comprise the portion of the United States east of the Mississippi
River (or such other portion of the United States that such court deems not to
be too extensive).
5. Non-Inducement.
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Executive hereby agrees that for a period commencing with the Date of
Termination and ending on the second anniversary of the Date of Termination,
Executive shall not induce, or attempt to influence, any employee of the Company
who reports either directly to the Company's Chief Executive Officer or
President and Chief Operating Officer or to another employee who reports
directly to the Company's Chief Executive Officer or President and Chief
Operating Officer to terminate his employment with the Company.
6. Non-Disclosure.
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For a period commencing on the Date of Termination and ending on the fifth
anniversary of the Date of Termination, Executive shall keep secret and retain
in strictest confidence, and shall not furnish, make available or disclose to
any third party or use for the benefit of himself or any third party, any
Confidential Information. As used in this Section, "Confidential Information"
shall mean any information relating to the business or affairs of the Company,
including but not limited to information relating to financial statements,
customer identities, customer needs, potential customers, employees, suppliers,
servicing methods, equipment, programs, strategies and information, analyses,
profit margins or other proprietary information used by the Company in
connection with its business; provided, however, that Confidential Information
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shall not include any information which is in the public domain or becomes known
in the industry through no wrongful act on the part of Executive. Executive
acknowledges that the Confidential Information is vital, sensitive, confidential
and proprietary to the Company.
7. No Unfavorable Publicity.
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Subsequent to Executive's Date of Termination, Executive agrees not to make
statements or communications and not to issue any written communications or
release any other written materials which would likely be materially damaging to
the Company's reputation or standing, whether in the investor or financial
community, the steel industry or otherwise.
8. Cooperation With the Company.
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Executive agrees to cooperate with the Company for a reasonable period of
time after the Term of this Agreement by making himself available to testify on
behalf of the Company, in any action, suit, or proceeding. In addition, for a
reasonable period of time, Executive agrees to be available at reasonable times
to meet and consult with the Company on matters reasonably within the scope of
his prior duties with the Company so as to facilitate a transition to his
successor. The Company agrees to reimburse Executive, on an after-tax basis, for
all expenses actually incurred in connection with his provision of testimony or
consulting assistance.
9. Release of Employment Claims.
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Executive and the Company agree that in the event Executive receives
Special Termination Benefits (as defined in Section 11(e)), he and the Company
will execute a mutual
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release agreement releasing any and all claims which either of them have or may
have against the other arising out of Executive's employment (other than
enforcement of this Agreement). The Executive agrees that in the event the
Executive's employment with the Company terminates or is terminated, the
Executive's sole and exclusive remedy shall be, and the Company's liability
shall be limited to, damages equal to the payments and benefits to be provided
by the Company hereunder and to payment or reimbursement of Executive's costs
and expenses in accordance with Section 12(b).
10. Remedies.
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Executive acknowledges and agrees that the covenants set forth in Sections
4 through 8 are reasonable and necessary for the protection of the Company's
business interests, that irreparable injury will result to the Company if
Executive breaches any of the terms of such covenants, and that in the event of
Executive's actual or threatened breach of any such covenants, the Company will
have no adequate remedy at law. Executive accordingly agrees that in the event
of any actual or threatened breach by him of any of such covenants, the Company
shall be entitled to immediate temporary injunctive and other equitable relief,
without the necessity of showing actual monetary damages, subject to hearing as
soon thereafter as possible. Nothing contained herein shall be construed as
prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of any damages which it
is able to prove.
11. Termination of Employment.
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(a) Termination Due to Death or Disability. Upon an Executive's Date of
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Termination during the Term due to death or Disability, the Company will pay
Executive (or his beneficiaries, dependents or estate), and Executive (or his
beneficiaries, dependents or estate) will be entitled to receive, the
Termination Benefits (as defined in Section 11(d)).
(b) Termination by the Company for Cause and Termination by Executive
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without Good Reason. Upon Executive's Date of Termination during the Term by the
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Company for Cause or by Executive without Good Reason the Company shall pay
Executive (or his beneficiaries, dependents or estate), and Executive (or his
beneficiaries, dependents or estate) shall be entitled to receive, the
Termination Benefits (as defined in Section 11(d)), except that no amount shall
be paid and no right accrued in respect of Executive under Section 11(d) (i)
(B).
(c) Termination by the Company Without Cause and Termination by Executive
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for Good Reason. Upon Executive's Date of Termination during the Term by the
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Company without Cause or by Executive for Good Reason the Company shall pay
Executive (or his beneficiaries, dependents or estate), and Executive (or his
beneficiaries, dependents or estate) shall be entitled to receive, the
Termination Benefits (as defined in Section 11(d)) and the Special Termination
Benefits (as defined in Section 11(e)).
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(d) Termination Following Expiration of the Term. Upon termination of
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employment following expiration of the Term, whether by the Executive with or
without Good Reason, or by the Company, without Cause, the Company shall pay
Executive (or his beneficiaries, dependents, or estate), and Executive (or his
beneficiaries, dependents, or estate) shall be entitled to receive, the
Termination Benefits (as defined in Section 11(d)) and the Special Termination
Benefits (as defined in Section 11(e)).
(e) "Termination Benefits". "Termination Benefits" means the aggregate of
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all of the following:
(i) a single sum cash payment by the Company to Executive within
thirty (30) days after the Date of Termination of
(A) Executive's then current annual base salary pro rata
through the Date of Termination to the extent not theretofore paid; (B) the
product of (y) the greater of (aa) the average annual incentive compensation
paid to Executive in the three fiscal years immediately preceding the fiscal
year of the Date of Termination (or all fiscal years Executive was employed if
less than three, and annualized in the event Executive was not employed by the
Company for the whole of any such fiscal year), and (bb) Executive's target
incentive compensation percentage payable under the MICP multiplied by
Executive's then current base salary and (z) a fraction, the numerator of which
is the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365; and (C) any accrued vacation
pay to the extent not theretofore paid.
(ii) All vested amounts owing or accrued at the Date of Termination
under any compensation and benefit plans, programs, and arrangements set forth
or referred to in this Agreement, including, but not limited to, Sections 2 and
3 hereof; and if the Date of Termination is due to death, Executive's estate or
other beneficiaries shall receive the death benefits described in Section 3(b).
(iii) Reasonable business expenses and disbursements incurred by
Executive prior to such Date of Termination will be fully reimbursed within ten
(10) days after the Date of Termination.
(f) "Special Termination Benefits". "Special Termination Benefits" means
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the aggregate of all of the following:
(i) The Company shall pay to Executive, in a single sum in cash
within thirty (30) days after the Date of Termination, an amount equal to fifty
percent of Executive's annual base salary (immediately preceding the Date of
Termination).
(ii) For two years after Executive's Date of Termination, if
Executive is less than age 69 on his Date of Termination, or such longer period
as may be provided by the terms of the appropriate plan, program, arrangement,
practice or policy, the Company shall continue
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benefits to Executive and/or Executive's dependents at least equal to those
which would have been provided to them in accordance with the Benefits Plans or
this Agreement if Executive's employment had not been terminated or, if more
favorable to Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and their dependents; provided,
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however, that notwithstanding anything in this Agreement to the contrary, if
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Executive is eligible to receive health benefits or other benefits under an NKK
Corporation sponsored plan or arrangement, or any Japanese government plan or
arrangement, or under any other plan or arrangement, the health benefits and
other benefits described herein shall be secondary to those provided under such
other plan or arrangement during such applicable period of eligibility; and
provided, further, that if Executive shall later become ineligible for health
benefits or other benefits under such other plans and arrangements, the health
benefits or other benefits provided by the Company shall be primary. If
Executive is age 69 or older on his Date of Termination, the period of "two
years" in the first line of this Section 11(e) (ii) shall be reduced to the
period set forth below:
Age Period
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69 One Year
70 or older Zero
(iii) Stock options held by Executive as of the date of this
Agreement were granted pursuant to the 1993 National Steel Corporation Non-
Employee Directors' Stock Option Plan and shall continue to be governed by the
terms and conditions of said Non-Employee Directors' Stock Option Plan. Stock
options granted to Executive after the date of this Agreement shall be issued
pursuant to the 1993 National Steel Corporation Long Term Incentive Plan and
shall continue to vest as if Executive had remained an employee of the Company
and shall remain fully exercisable for the lesser of (a) the entire period that
would have been available for exercise had Executive continued in the employ of
the Company through the original option term or (b) five years; such stock
options shall otherwise be governed by the terms and conditions of said Long
Term Incentive Plan (and the agreements and other documents thereunder) pursuant
to which such stock options were granted.
12. Governing Law; Disputes; Arbitration.
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(a) Governing Law. This Agreement is governed by and is to be construed,
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administered, and enforced in accordance with the laws of the State of Indiana,
without regard to Indiana conflicts of law principles, except insofar as the
Delaware General Corporation Law and federal laws and regulations may be
applicable. If under the governing law, any portion of this Agreement is at any
time deemed to be in conflict with any applicable statute, rule, regulation,
ordinance, or other principle of law, such portion shall be deemed to be
modified or altered to the
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extent necessary to conform thereto or, if that is not possible, to be omitted
from this Agreement. The invalidity of any such portion shall not affect the
force, effect, and validity of the remaining portion hereof.
(b) Reimbursement of Expenses in Enforcing Rights. All costs and expenses
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(including, without limitation, fees and disbursements of actuaries, accountants
and counsel) incurred by Executive in seeking in good faith to enforce rights
pursuant to this Agreement shall be paid on behalf of or reimbursed to Executive
promptly by the Company, whether or not Executive is successful in asserting
such rights. If there shall be any dispute between the Company and Executive,
the Company shall pay or provide, as applicable, all undisputed amounts or
benefits as are then payable to Executive or Executive's beneficiaries or
dependents pursuant to this Agreement. Any amounts that have become payable
pursuant to the terms of this Agreement or any decision by arbitrators or
judgment by a court of law, but which are not timely paid shall bear interest,
payable by the Company, at the lower of (A) the highest lawful rate or (B) the
prime rate in effect at the time such payment first becomes payable, as quoted
by The Wall Street Journal.
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(c) Arbitration. Any dispute or controversy arising under or in connection
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with this Agreement shall be settled exclusively by arbitration in Chicago,
Illinois, in accordance with the rules of the American Arbitration Association
in effect at the time of submission to arbitration, by three (3) arbitrators,
one of which shall be chosen by the Company, one of which shall be chosen by
Executive, and one of which shall be chosen by the arbitrators chosen by Company
and Executive. Judgment may be entered on the arbitrators' award in any court
having jurisdiction. For purposes of entering any judgment upon an award
rendered by the arbitrators, the Company and Executive hereby consent to the
jurisdiction of any or all of the following courts: (i) the United States
District Court for the Northern District of Indiana; (ii) any of the courts of
the State of Indiana, or (iii) any other court having jurisdiction. The Company
and Executive further agree that any service of process or notice requirements
in any such proceeding shall be satisfied if the rules of such court relating
thereto have been substantially satisfied. The Company and Executive hereby
waive, to the fullest extent permitted by applicable law, any objection which it
may now or hereafter have to such jurisdiction and any defense of inconvenient
forum. The Company and Executive hereby agree that a judgment upon an award
rendered by the arbitrators may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. The Company shall bear all
costs and expenses arising in connection with any arbitration proceeding.
Notwithstanding any provision in this Section 12(c), Executive shall be entitled
to seek specific performance of Executive's right to be paid during the pendency
of any dispute or controversy arising under or in connection with this
Agreement.
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13. Definitions.
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Certain terms in this Agreement are defined the first time they appear;
other terms which are capitalized are not defined the first time they appear,
but unless the context indicates otherwise, have the meanings set forth below:
(a) "Cause". For purposes of this Agreement, "Cause" shall mean
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Executive's gross misconduct (as defined herein) or willful and material breach
of this Agreement. For purposes of this definition, "gross misconduct" shall
mean (A) a felony conviction or a plea of nolo contendere to a felony charge in
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a court of law under applicable federal or state laws which results in material
damage to the Company, or (B) willfully engaging in one or more acts which is
demonstrably and materially damaging to the Company. Notwithstanding the
foregoing, Executive may not be terminated for Cause unless and until there
shall have been delivered to him, within six months after the Board (A) had
knowledge of conduct or an event allegedly constituting Cause and (B) had reason
to believe that such conduct or event could be grounds for Cause, a copy of a
resolution duly adopted by a majority affirmative vote of the entire membership
of the Company's Board of Directors (excluding Executive if a member of
Company's Board of Directors), at a meeting of the Board called and held for
such purpose (after giving Executive reasonable notice specifying the nature of
the grounds for such termination and not less than 30 days to correct the acts
or omissions complained of, if correctable, and affording Executive the
opportunity, together with his counsel, to be heard before the Board) finding
that, in the good faith opinion of the Board, Executive was guilty of conduct
set forth above in this Section 13 (a).
(b) "Date of Termination". "Date of Termination" means (i) if Executive's
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employment is terminated by the Company for Cause or by Executive for Good
Reason, the date of receipt of the Notice of Termination or any later date
specified therein, as the case may be; (ii) if Executive's employment is
terminated by the Company without Cause, the Date of Termination shall be the
date on which the Company notifies Executive of such Date of Termination, and
(iii) if Executive's employment is terminated by reason of death or Disability,
or is terminated by Executive without Good Reason, the Date of Termination shall
be the date of death of Executive, the Disability Effective Date, or the date
Executive notifies the Company that Executive's employment will terminate, as
the case may be. If the Company determines in good faith that the Disability of
Executive has occurred during the Term of the Agreement (pursuant to the
definition of Disability set forth in Section 13 (c)), it may give to Executive
written notice in accordance with Section 13(e) of this Agreement of its
intention to terminate Executive's employment. In such event, Executive's Date
of Termination is effective on the date that is six months after receipt of such
notice by Executive (the "Disability Effective Date"), provided that, within
such six month period, Executive shall not have returned to full-time
performance of Executive's duties. Any termination by the Company for Cause, or
by Executive for Good Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 13 (e) of this
Agreement.
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(c) "Disability". "Disability" means the failure of Executive to render
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and perform the services required of him under this Agreement, for a total of
180 days or more during any consecutive 12 month period, because of any physical
or mental incapacity or disability as determined by a physician or physicians
selected by the Company and reasonably acceptable to Executive, unless, within
six (6) months after Executive has received written notice from the Company of a
proposed Date of Termination due to such absence, Executive shall have returned
to the full performance of his duties hereunder and shall have presented to the
Company a written certificate of Executive's good health prepared by a physician
selected by Executive and reasonably acceptable to the Company.
(d) "Good Reason". For purposes of this Agreement, "Good Reason" shall
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mean the occurrence of any of the following events set forth in paragraphs (i)
through (vii) below, without Executive's prior written consent.
(i) the diminution of Executive's status, titles, positions,
duties, offices, authorities, responsibilities, assignments or reporting
relationships, or removal from Executive of any status, titles, positions,
duties, offices, authorities, responsibilities, assignments or reporting
relationships, which is inconsistent in any respect with Executive's status,
titles, positions, duties, offices, authorities, responsibilities, assignments
or reporting relationships, as contemplated by Section 1 of this Agreement,
excluding for this purpose (a) any removal of the title "Chairman of the Board,"
the removal of Executive from the Board, or any failure to elect or re-elect, or
nominate Executive to the Board, (b) any search for a new Chief Executive
Officer or other transition or succession planning for a new Chief Executive
Officer, (c) any announcement of an appointment of a new Chief Executive
Officer, with an effective date after the Term hereof, or (d) an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by
Executive;
(ii) any reduction in Executive's then current base salary or in
Executive's then current target incentive compensation opportunity under the
MICP;
(iii) any failure by the Company to comply with any of the provisions
of this Agreement, including but not limited to Sections 2 and 3 of this
Agreement, other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by Executive;
(iv) any failure by the Company to perform any obligation under, or
breach by the Company of any provision of, this Agreement;
(v) any purported termination by the Company of Executive's
employment otherwise than as expressly permitted by this Agreement;
(vi) any failure by the Company to comply with and satisfy Section
14(c) of this Agreement; or
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(vii) voluntary termination of employment by Executive with the prior
approval of a simple majority of the Board.
(e) "Notice of Termination". "Notice of Termination" means a written
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notice which (i) indicates the specific termination provision in this Agreement
relied upon, (ii) to the extent applicable, sets forth the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated and (iii) if the Date of Termination
is other than the date of receipt of such notice, specifies the Date of
Termination. The failure by Executive or the Company to set forth in the Notice
of Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of Executive or the Company,
respectively, hereunder or preclude Executive or the Company, respectively, from
asserting such fact or circumstance in enforcing Executive's or the Company's
rights hereunder.
(f) "Board" or "Board of Directors". "Board" or "Board of Directors" means
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the full board of directors of the Company as it may be constituted in
accordance with applicable law from time to time, and any committee of the board
shall not be deemed to be the Board or Board of Directors for purposes of this
Agreement.
14. Miscellaneous.
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(a) Integration. This Agreement modifies and supersedes any and all prior
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employment agreements. This Agreement constitutes the entire agreement among the
parties with respect to the matters herein provided, and no modification or
waiver of any provision hereof shall be effective unless in writing and signed
by the parties hereto.
(b) Nonexclusivity of Rights. Nothing in this Agreement shall prevent or
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limit Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company during the Term of this Agreement and
for which Executive may qualify, nor shall anything herein limit or otherwise
affect such rights as Executive may have under any contract or agreement with
the Company. Amounts which are vested benefits or which Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement. In the event of any conflict between the terms and provisions of this
Agreement and any of the Company's plans, policies, practices, programs,
contracts or agreements, the terms and provisions of whichever is more favorable
to the Executive shall prevail.
(c) Non-Transferability. Neither this Agreement nor the rights or
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obligations hereunder of the parties hereto shall be transferable or assignable
by Executive, except in accordance with the laws of descent and distribution or
as specified in Section 14(d). The Company may, but only with the consent of
Executive, assign this Agreement and the Company's rights and obligations
hereunder, and the Company shall, as a condition of the
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succession, require such Successor to assume (jointly and severally with the
Company) the Company's obligations and be bound by this Agreement. Any such
assignment shall not release the Company of any of its obligations under this
Agreement. For purposes of this Agreement, "Successor" shall mean any person
that succeeds to, or has the practical ability to control (either immediately or
with the passage of time), the Company's business directly, by merger or
consolidation, or indirectly, by purchase of the Company's voting securities or
all or substantially all of its assets, or otherwise.
(d) Beneficiaries. Executive shall be entitled to designate (and change,
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to the extent permitted under applicable law) a beneficiary or beneficiaries to
receive any compensation or benefits payable hereunder following Executive's
death. If Executive should die while any amount would still be payable to him
hereunder had Executive continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
his devisee, legatee or other designee or, if there is no such designee, to his
estate.
(e) Notices. Whenever under this Agreement it becomes necessary to give
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notice, such notice shall be in writing, signed by the party or parties giving
or making the same, and shall be served on the person or persons for whom it is
intended or who should be advised or notified, by overnight courier service or
by certified or registered mail, return receipt requested, postage prepaid and
addressed to such party at the address set forth below or at such other address
as may be designated by such party by like notice:
If to the Company:
General Counsel
National Steel Corporation
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
If to the Executive at his then current address reflected in the Company's
records.
If the parties by mutual agreement supply each other with telecopier
numbers for the purposes of providing notice by facsimile, such notice shall
also be proper notice under this Agreement when sent. In the case of overnight
courier service, such notice or advice shall be effective when sent, and, in the
cases of certified or registered mail, shall be effective 2 days after deposit
into the mails by delivery to the U.S. Post Office.
(f) Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
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(g) No General Waivers. The failure of any party at any time to require
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performance by any other party of any provision hereof or to resort to any
remedy provided herein or at law or in equity shall in no way affect the right
of such party to require such performance or to resort to such remedy at any
time thereafter, nor shall the waiver by any party of a breach of any of the
provisions hereof be deemed to be a waiver of any subsequent breach of such
provisions. No such waiver shall be effective unless in writing and signed by
the party against whom such waiver is sought to be enforced.
(h) No Obligation To Mitigate. Executive shall not be required to seek
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other employment or otherwise to mitigate Executive's damages on or after
Executive's Date of Termination, and the amount of any payment or benefit
provided for in this Agreement shall not be reduced by any compensation or
benefits earned by Executive as the result of employment by another employer or
by retirement benefits; provided, however, that, the health benefits or other
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benefits that Executive is entitled to receive after the Date of Termination may
be reduced in accordance with the terms of Section 11 (e) (ii).
(i) Offsets; Withholding. The amounts required to be paid by the Company
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to Executive pursuant to this Agreement shall not be subject to offset. The
foregoing and other provisions of this Agreement notwithstanding, all payments
to be made to Executive under this Agreement, including under Section 11, or
otherwise by the Company, will be subject to required withholding taxes and
other required deductions.
(j) Successors and Assigns. This Agreement shall be binding upon and
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shall inure to the benefit of Executive, his heirs, executors, administrators
and beneficiaries, and shall be binding upon and inure to the benefit of the
Company and its permitted successors and assigns as provided in Section 14(c).
This Agreement is a personal contract and the rights and interests of Executive
hereunder may not be sold, transferred, assigned, pledged, encumbered, or
hypothecated by him, except as otherwise expressly permitted by the provisions
of this Agreement. This Agreement shall inure to the benefit of and be
enforceable by Executive and his personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
(k) Actuarially Equivalent Value Calculation. For the purpose of
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determining an actuarially equivalent value under the terms of this Agreement,
the interest rate specified in Section 417(e) (3) of the Internal Revenue Code
of 1986, or any successor section thereto, as of the date of such determination,
and the 1994 Group Annuitants Mortality Table, shall be used and for purposes of
determining present value under the terms of this Agreement, the interest rate
specified immediately above shall be used. All calculations shall be made at the
expense of the Company, by the independent auditors of the Company. As soon as
practicable after the need for such calculation arises, the Company shall
provide to its auditors all information needed to perform such calculations.
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IN WITNESS WHEREOF, Executive has hereunto set his hand and the Company has
caused this instrument to be duly executed as of the day and year first above
written.
NATIONAL STEEL CORPORATION
By:________________________________
Name:
Title:
___________________________________
Xxxxxxx Xxxxxx
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