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Exhibit 10.5
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of April, 2000 by and between
WEIRTON STEEL CORPORATION, a Delaware corporation with its principal executive
offices located at 000 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 1st day of April, 2000 and shall continue until terminated by
party at any time for any reason in accordance with the terms of this Agreement.
During the term hereof, Employee shall serve as a full-time, salaried employee
of the Corporation. 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) 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 such period as the Corporation may request but not to exceed
60 days following the receipt by Employee 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 one of the following reasons: (i) conviction of
a felony punishable by a prison sentence of more than one year; (ii) habitual
use of drugs without a prescription or habitual, excessive use of alcohol to the
extent that any of such uses materially interferes with Employee's performance
of his duties; or (iii) refusal or failure, after notice, by Employee to perform
or discharge duties and responsibilities appropriate to his position, which
refusal or failure amounts to an extended and gross neglect of his duties to the
Corporation; (iv) breach of paragraph (c) of Paragraph Fifth of this Agreement;
or (v) breach of any confidentiality agreement between the Corporation and the
Employee. Except as otherwise specifically set forth in this Agreement or as
otherwise prohibited by law, all rights of Employee, and all obligations of the
Corporation under this Agreement, shall cease on, and as of, the effective date
of the termination of Employee (the "Termination Date").
(b) The Corporation shall be deemed to have agreed to a
termination without just cause in accordance with paragraph (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 other than in the Greater Pittsburgh
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area in order to perform his duties for the Corporation; provided, that such
action is taken without the Employee's consent, 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 without
cause in accordance with Paragraph Second, 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.
It is the intent 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) 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. Notwithstanding the above, the Corporation
shall not be obligated as provided in this Paragraph Third during any period
when employee does not comply with Paragraph Fourth. For all other purposes,
Employee's employment shall terminate on the Termination Date. If Employee's
employment is terminated for just cause or by Employee, no Termination Benefits
shall be paid by Corporation to Employee.
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(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, if any, and the bonus to which Employee would
have otherwise been entitled, if any, for the fiscal year 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.
(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 paragraph (a) of Paragraph Second,
paragraph (a) or (b) of this Paragraph Third or Paragraph Fourth; 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: Perquisites
(a) The Employee will be entitled to the use of a
Company-owned and maintained vehicle pursuant to the terms of the Corporation's
Car and Car Allowance Policy, a copy of which has been provided to the Employee;
(b) Membership in Xxxxxxxx Country Club which will be provided
at the Corporation's expense, provided that the Employee shall be responsible
for his expenses at the Country Club which are non-business related.
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Fifth: 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.
(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 date hereof and
continuing for one year following the Termination Date, 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 Fifth 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 Fifth 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.
Sixth: 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
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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
Sixth shall not apply in any case where Employee, upon such termination, would
not qualify under any program of long-term disability benefits provided by the
Corporation.
Seventh: 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.
Eighth: 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.
Ninth: 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, and Employee, his heirs, executors, administrators and legal
representatives.
Tenth: Governing Law: This Agreement shall be governed by the
laws of the State of Delaware, without regard to its principles of conflicts of
laws.
Eleventh: 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 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.
Twelfth: 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.
Thirteenth: Termination of Term of Agreement: If the Employee,
in the reasonable opinion of the Corporation, breaches Paragraph (c) of
Paragraph Fifth of this Agreement by disparaging the Corporation, its officers
or directors or breaches a confidentiality agreement between the Corporation and
the Employee, which are respectively defined as events of just cause in
Paragraphs 2(a)(iv) and (v) of this Agreement, the Corporation, in its sole
discretion and without waiving any other right it has or may have at law, under
this Agreement or under any other agreement or policy applicable to the
Employee, may provide written notice to the Employee that the term of this
Agreement is ended immediately upon delivery of such notice. The termination of
the term of this Agreement shall not be a reduction in position, duties,
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responsibilities, or status of the Employee with the Corporation under Paragraph
Second or constructive or actual discharge of the Employee from employment with
the Corporation for purposes of this Agreement. No Termination Benefits will be
due or payable in connection with or as a result of delivery of a notice
pursuant to this Paragraph Thirteenth ending the term of this Agreement. If a
notice of the termination of the term of this Agreement pursuant to this
Paragraph Thirteenth is delivered to the Employee, the Employee will immediately
become an employee at will of the Corporation without benefit of this Agreement
or any other employment agreement or representation of continued employment,
express or implied.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
WEIRTON STEEL CORPORATION
Date: 6/26/00 By: /s/ Xxxxx X. Xxxxxxxxx
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Title: Exec. V.P.-Human Resources & Corp. Law
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EMPLOYEE:
Date: 6/26/00 Name: /s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
Address: 1133 Tall Trees
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Xxxxxxxxxx, XX 00000
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