EXHIBIT 10.VV
January 24, 2003
Xxxxx Xxxxxxxx
National Steel Corporation
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Dear Xx. Xxxxxxxx:
National Steel Corporation ("Company") and you ("Employee") are currently
parties to a letter agreement dated as of February 11, 2002 (the "Original
Agreement"). The parties now wish to amend and restate the Original Agreement in
its entirety. Therefore, the parties hereby agree as follows:
(1) When used herein, the following capitalized terms shall have the meanings
set forth below:
(a) "Cause" shall mean (i) Employee is convicted of a felony, (ii) in the
reasonable determination of the Company, Employee has (x) committed an act
of fraud, embezzlement or theft in connection with Employee's duties in the
course of Employee's employment with the Company, (y) caused intentional
damage or harm to the property, business or reputation of the Company, or
(z) intentionally disclosed Confidential Information (as hereinafter
defined) in breach of this Agreement, or (iii) Employee has otherwise
materially breached Employee's obligations under this Agreement and shall
not have remedied such breach within 15 days after receiving written notice
from the Company specifying the details thereof. For purposes of this
Agreement, an act or omission on the part of Employee shall be deemed
"intentional" only if it was not due primarily to an error in judgment or
negligence and was done by Employee not in good faith and without
reasonable belief that the act or omission was in the best interest of the
Company.
(b) "Termination Event" shall mean (i) termination of Employee's
employment with the Company, within two years following the closing of a
Transaction, either (a) by Employee following a reduction of Employee's
base salary from the base salary then in effect, (b) by Employee following
a reduction or diminution of Employee's duties or responsibilities without
Employee's prior written consent, or (c) by Company other than for Cause;
or (ii) termination of this Agreement by the Company in accordance with
Section (4) hereof.
(c) "Termination Date" shall mean the date on which a Termination Event
occurs.
(d) "Transaction" shall mean any transaction pursuant to which any third
party acquires a majority of the stock or assets of the Company, including
any such transaction
pursuant to which the Company is merged into a wholly owned subsidiary of
such third party.
(2) If a Termination Event occurs, the Company shall:
(a) pay to Employee any unused vacation pay, in accordance with the
Company's standard policies and practices;
(b) reimburse Employee, in accordance with the Company's standard expense
reimbursement policy, for any reasonable expenses incurred by Employee
prior to the Termination Date that have not theretofore been reimbursed;
(c) pay to Employee a single sum payment in cash, within 30 days after the
Termination Date, in an amount equal to Employee's annual base salary as in
effect immediately prior to the Termination Date;
(d) pay to Employee a single sum payment in cash, within 30 days after the
Termination Date, in an amount equal to Employee's target bonus percentage
pursuant to the Company's Key Management Incentive Compensation Plan, or
any successor plan thereto, multiplied by the Employee's annual base salary
as in effect immediately prior the Termination Date; and
(e) provide continued participation for Employee and Employee's eligible
dependents in the Company sponsored health care plan, in which Employee
participated immediately prior to the Termination Date, for a period of 12
months following the Termination Date, provided that such participation
shall in any case cease if Employee becomes covered under a group health
care plan sponsored by another employer. If the Company sponsored health
care plan does not by its terms allow participation or continued
participation by Employee or Employee's eligible dependents, the Company
shall obtain and pay all premiums for insurance coverage on behalf of
Employee and/or Employee's eligible dependents that provides equivalent
benefits as provided under such Company sponsored health care plan or, at
the Company's election, shall provide such benefits from its own assets.
(f) Notwithstanding any other provision of this Agreement to the contrary,
Employee shall not be entitled to any of the payments or benefits described
in Sections (2)(c) - (2)(e) unless Employee executes a written release upon
the Termination Date, substantially in the form attached hereto as Annex 1
(the "Release"), of any and all claims against the Company and all related
parties with respect to all matters arising out of Employee's employment by
the Company (other than any entitlements under the terms of this Agreement
or under any other plans or programs of the Company in which Employee
participated and under which Employer has accrued a benefit), or the
termination thereof.
(3) In consideration of the agreements of the Company set forth in Section (2)
above, Employee hereby agrees as follows:
(a) Employee recognizes and acknowledges that by reason of Employee's
employment by and service to the Company during and, if applicable, after
the Termination Date, Employee will continue to have access to certain
confidential and proprietary information relating to the business of the
Company, which may include, but is not limited to, trade secrets, trade
"know-how," customer information, supplier
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information, cost and pricing information, marketing and sales techniques,
strategies and programs, manufacturing processes and equipment, computer
programs and software and financial information (collectively referred to
as "Confidential Information"). Employee acknowledges that such
Confidential Information is a valuable and unique asset of the Company and
Employee covenants that Employee will not, unless expressly authorized in
writing by the Company's President or Chief Executive Officer, at any time
during the course of Employee's employment use any Confidential Information
or divulge or disclose any Confidential Information to any person, firm or
corporation except in connection with the performance of Employee's duties
for the Company and in a manner consistent with the Company's policies
regarding Confidential Information. Employee also covenants that at any
time after the Termination Date, Employee will not use any Confidential
Information or divulge or disclose any Confidential Information to any
person, firm or corporation, unless such information is in the public
domain through no fault of Employee or except when required to do so by a
court of law, by any governmental agency having supervisory authority over
the business of the Company or by any administrative or legislative body
(including a committee thereof) with apparent jurisdiction to order
Employee to divulge, disclose or make accessible such information, in which
case Employee will inform the Company in writing promptly of such required
disclosure, but in any event at least two business days prior to
disclosure. All written Confidential Information (including, without
limitation, in any computer or other electronic format) which comes into
Employee's possession during the course of Employee's employment shall
remain the property of the Company. Except as required in the performance
of Employee's duties for the Company, or unless expressly authorized in
writing by the Company's President or Chief Executive Officer, Employee
shall not remove any written Confidential Information from the Company's
premises, except in connection with the performance of Employee's duties
for the Company and in a manner consistent with the Company's policies
regarding Confidential Information. Upon termination of Employee's
employment, Employee agrees immediately to return to the Company all
written Confidential Information in Employee's possession.
(b) During Employee's employment by the Company and for a period of three
months after the Termination Date, within the "Geographic Area," as defined
below, Employee will not, except with the prior written consent of the
Company's President or Chief Executive Officer, directly or indirectly,
own, manage, operate, join, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected
as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with, or use or permit Employee's
name to be used in connection with, any business or enterprise which is
engaged in making, producing, manufacturing or finishing steel products
that are in direct competition with steel products made, produced,
manufactured or finished by the Company. For the purposes of this Section,
"Geographic Area" shall mean the continental United States; provided,
however, that if any court of competent jurisdiction determines that the
Geographic Area is too extensive to require enforcement of this Subsection
3(b), the Geographic Area shall be the portion of the United States east of
the Mississippi River (or the largest other such portion of the United
States that such court deems not too extensive to require enforcement of
this Subsection 3(b)). The foregoing restrictions shall not be construed to
prohibit the ownership by Employee of less than one percent (1%) of any
class of securities of any corporation which is engaged in any of the
foregoing businesses having a class of securities registered pursuant to
the Securities Exchange Act of 1934, provided that such ownership
represents a passive investment and that neither Employee nor any group of
persons including Employee in any way, either directly or indirectly,
manages or
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exercises control of any such corporation, guarantees any of its financial
obligations, otherwise takes any part in its business, other than
exercising Employee's rights as a shareholder, or seeks to do any of the
foregoing.
(c) Employee further covenants and agrees that during Employee's
employment by the Company and for the period of one year after the
Termination Date, Employee will not, directly or indirectly, (i) solicit,
divert, take away, or attempt to solicit, divert or take away, any of the
Company's customers, or (ii) encourage any customer to reduce its patronage
of the Company.
(d) Employee further covenants and agrees that during Employee's
employment by the Company and for the period of one year after the
Termination Date, Employee will not, except with the prior written consent
of the Company's President or Chief Executive Officer, directly or
indirectly, solicit or hire, or encourage the solicitation or hiring of,
any person who was a managerial or higher level employee of the Company at
any time during the term of Employee's employment by the Company by any
employer other than the Company for any position as an employee,
independent contractor, consultant or otherwise. The foregoing covenant of
Employee shall not apply to any person after 12 months have elapsed
subsequent to the date on which such person's employment by the Company has
terminated.
(e) During the Term and subsequent to the Termination Date, Employee
agrees not to make any negative or unfavorable statements or
communications, and not to issue any written communications or release any
other written materials which would be materially damaging to the Company,
its officers, directors or affiliates, or its or their reputation or
standing, whether in the investor or financial community, the steel
industry or otherwise.
(f) Employee agrees to cooperate with the Company for a reasonable period
of time after the Termination Date 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 after the Termination Date, Employee 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
compensate Employee for any such services at the rate of base salary
applicable to Employee immediately prior to the Termination Date and to
reimburse Employee for all expenses actually incurred in connection with
his provision of testimony or consulting assistance.
(g) Employee acknowledges and agrees that the restrictions contained in
this Section 3 are reasonable and necessary to protect and preserve the
legitimate interests, properties, goodwill and business of the Company,
that the Company would not have entered into this Agreement in the absence
of such restrictions and that irreparable injury will be suffered by the
Company should Employee breach any of the provisions of this Section.
Employee represents and acknowledges that (i) Employee has been advised by
the Company to consult Employee's own legal counsel in respect of this
Agreement, and (ii) that Employee has had full opportunity, prior to
execution of this Agreement, to review thoroughly this Agreement with
Employee's counsel.
(h) Employee further acknowledges and agrees that a breach of any of the
restrictions in this Section (3) cannot be adequately compensated by
monetary damages. Employee agrees that the Company shall be entitled to
preliminary and permanent
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injunctive relief, without the necessity of proving actual damages, as well
as an equitable accounting of all earnings, profits and other benefits
arising from any violation of Section (3) hereof, which rights shall be
cumulative and in addition to any other rights or remedies to which the
Company may be entitled. In the event that any of the provisions of Section
(3) hereof should ever be adjudicated to exceed the time, geographic,
service, or other limitations permitted by applicable law in any
jurisdiction, it is the intention of the parties that the provision shall
be amended to the extent of the maximum time, geographic, service, or other
limitations permitted by applicable law, that such amendment shall apply
only within the jurisdiction of the court that made such adjudication and
that the provision otherwise be enforced to the maximum extent permitted by
law.
(i) If Employee breaches any of Employee's obligations under Section (3)
hereof, and such breach constitutes Cause, or would constitute Cause if it
had occurred prior to the Termination Date, the Company shall thereafter
remain obligated only for such compensation and other benefits, if any, as
may otherwise be required in any plans, policies or practices then
applicable to Employee in accordance with the terms thereof, and not for
any compensation or other benefits under this Agreement.
(j) Employee irrevocably and unconditionally (i) agrees that any suit,
action or other legal proceeding arising out of Section (3) hereof,
including without limitation, any action commenced by the Company for
preliminary and permanent injunctive relief and other equitable relief, may
be brought in the United States District Court for the Northern District of
Indiana, or if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in Indiana, (ii)
consents to the non-exclusive jurisdiction of any such court in any such
suit, action or proceeding, and (iii) waives any objection which Employee
may have to the laying of venue of any such suit, action or proceeding in
any such court.
(4) The term of this Agreement shall commence as of the date hereof and shall
continue thereafter for successive one year periods, unless sooner terminated by
written notice given by either party not less than 60 days prior to January 24,
2004, or any subsequent January 24; provided, however, that the respective
rights and obligations of the parties under this Agreement shall survive any
termination of this Agreement or of Employee's employment to the extent
necessary to the intended preservation of such rights and obligations.
(5) In the event of any dispute under the provisions of this Agreement other
than a dispute in which the primary relief sought is an equitable remedy such as
an injunction, the parties shall be required to have the dispute, controversy or
claim settled by arbitration in Mishawaka, Indiana, in accordance with National
Rules for the Resolution of Employment Disputes then in effect of the American
Arbitration Association, before a panel of three arbitrators, two of whom shall
be selected by the Company and Employee, respectively, and the third of whom
shall be selected by the other two arbitrators. Any award entered by the
arbitrators shall be in writing and accompanied by a written finding of facts.
Such award shall be final, binding and nonappealable, and judgment may be
entered thereon by either party in accordance with applicable law in any court
of competent jurisdiction. This arbitration provision shall be specifically
enforceable. The arbitrators shall have no authority to modify any provision of
this Agreement or to award a remedy for a dispute involving this Agreement other
than a benefit specifically provided under or by virtue of the Agreement. If
Employee prevails on any material issue which is the subject of such arbitration
or lawsuit, the Company shall be responsible for all of the fees of the American
Arbitration Association and the arbitrators and any expenses relating to the
conduct of the
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arbitration (including the Company's and Employee's reasonable attorneys' fees
and expenses). Otherwise, each party shall be responsible for its own expenses
relating to the conduct of the arbitration (including reasonable attorneys' fees
and expenses) and shall share the fees of the American Arbitration Association.
(6) All notices and other communications required or permitted under this
Agreement or necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when hand delivered or mailed by
registered or certified mail, as follows (provided that notice of change of
address shall be deemed given only when received):
If to the Company, to:
President and Chief Operating Officer
National Steel Corporation
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
If to Employee, to:
Xxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
or to such other names or addresses as the Company or Employee, as the case may
be, shall designate by notice to each other person entitled to receive notices
in the manner specified in this Section.
(7) This Agreement amends and restates the Original Agreement and sets forth
the entire understanding between the parties hereto with respect to the subject
matter hereof and cannot be changed, modified, extended or terminated except
upon written amendment executed by the Company and by Employee.
(8) All of the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties
hereto, except that the duties and responsibilities of Employee under this
Agreement are of a personal nature and shall not be assignable or delegatable in
whole or in part by Employee.
(9) If any provision of this Agreement or application thereof to anyone or
under any circumstances is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect any other
provision or application of this Agreement which can be given effect without the
invalid or unenforceable provision or application and shall not invalidate or
render unenforceable such provision or application in any other jurisdiction. If
any provision is held void, invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all
other circumstances.
(10) No remedy conferred upon a party by this Agreement is intended to be
exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to any other remedy given under this
Agreement or now or hereafter existing at law or in equity. No delay or omission
by a party in exercising any right, remedy or power under this Agreement or
existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or
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power may be exercised by such party from time to time and as often as may be
deemed expedient or necessary by such party in its sole discretion.
(11) Employee shall be entitled, to the extent permitted under any applicable
law, to select and change a beneficiary or beneficiaries to receive any
compensation or benefit payable under this Agreement following Employee's death
by giving the Company written notice thereof. In the event of Employee's death
or a judicial determination of Employee's incompetence, reference in this
Agreement to Employee shall be deemed, where appropriate, to refer to Employee's
beneficiary, estate or other legal representative.
(12) All section headings used in this Agreement are for convenience only. This
Agreement may be executed in counterparts, each of which is an original. It
shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
(13) The Company may withhold from any payments under this Agreement all
federal, state and local taxes as the Company is required to withhold pursuant
to any law or governmental rule or regulation. Employee shall bear all expense
of, and be solely responsible for, all federal, state and local taxes due with
respect to any payment received under this Agreement.
(14) This Agreement shall be governed by and interpreted under the laws of the
State of Indiana without giving effect to any conflict of laws provisions.
If the terms of this letter are acceptable to you, please so indicate by signing
in the space provided below, whereupon this letter shall constitute an agreement
between us.
Sincerely,
NATIONAL STEEL CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Title: President and Chief Operating Officer
----------------------------------------
Accepted and Agreed To:
/s/ Xxxxx Xxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxx
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ANNEX 1
RELEASE
This Release, dated_____________, is by Xxxxx Xxxxxxxx ("Employee").
1. Employee does hereby knowingly and voluntarily release, acquit and
forever discharge National Steel Corporation (the "Company"), its present and
former officers, directors, subsidiaries, divisions, parents, affiliates,
employees, agents, servants, associates, attorneys, accountants, auditors,
consultants, counselors, partners, representatives, predecessors, successors,
heirs, executors, administrators, transferees, trustees, assigns, shareholders
(including without limitation NKK Corporation, NKK U.S.A. Corporation and their
respective directors, officers, employees, trustees and shareholders), and any
and all persons in privity with such persons or entities ("Releasees"), from and
against any and all charges, complaints, claims, cross-claims, third-party
claims, counterclaims, contribution claims, contracts, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses of any nature whatsoever,
known or unknown, suspected or unsuspected, foreseen or unforeseen, matured or
unmatured, which exist, have existed, or may arise from any matter whatsoever
occurring at any time up to and including the date hereof, including, but not
limited to, any claims arising out of or in any way related to Employee's
employment with the Company. Employee acknowledges that, in exchange for this
Release, the Company is providing Employee with consideration, financial and
otherwise, which exceeds what Employee would have received had Employee not
given this release. By executing this Release, Employee waives all claims
against the Releasees arising under federal, state and local labor and
anti-discrimination laws and any other restrictions on the right to terminate
employment, including, without limitation, Title VII of the Civil Rights Act of
1964, as amended, the Americans with Disabilities Act of 1990, as amended, and
claims for breach of contract, promissory estoppel, defamation, tortious
interference, intentional infliction of emotional distress, tortious injury to
reputation, misrepresentation and fraud.
2. EMPLOYEE SPECIFICALLY WAIVES AND RELEASES THE RELEASEES FROM ALL CLAIMS
EMPLOYEE MAY HAVE AS OF THE DATE EMPLOYEE SIGNS THIS RELEASE REGARDING CLAIMS OR
RIGHTS ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS
AMENDED, 29 U.S.C. Section 621 et seq. ("ADEA"). EMPLOYEE FURTHER AGREES: (a)
THAT EMPLOYEE'S WAIVER OF RIGHTS UNDER THIS RELEASE IS KNOWING AND VOLUNTARY AND
IN COMPLIANCE WITH THE OLDER WORKERS' BENEFIT PROTECTION ACT OF 1990; (b) THAT
EMPLOYEE UNDERSTANDS THE TERMS OF THIS RELEASE; (c) THAT PAYMENTS AND OTHER
BENEFITS PROVIDED BY THE COMPANY TO THE EMPLOYEE WOULD NOT HAVE BEEN PROVIDED
HAD EMPLOYEE NOT SIGNED THIS RELEASE, AND THAT THE PAYMENTS AND BENEFITS ARE IN
EXCHANGE FOR THE SIGNING OF THIS RELEASE; (d) THAT EMPLOYEE HAS BEEN ADVISED IN
WRITING BY THE COMPANY TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS
RELEASE; (e) THAT THE COMPANY HAS GIVEN EMPLOYEE A PERIOD OF AT LEAST TWENTY-ONE
(21) DAYS WITHIN WHICH TO CONSIDER THIS RELEASE; (f) THAT EMPLOYEE REALIZES THAT
FOLLOWING EMPLOYEE'S EXECUTION OF THIS RELEASE, EMPLOYEE HAS SEVEN (7) DAYS IN
WHICH TO REVOKE THIS RELEASE BY WRITTEN NOTICE
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TO THE VICE PRESIDENT AND GENERAL COUNSEL OF THE COMPANY; AND (g) IF EMPLOYEE
CHOOSES TO REVOKE THIS RELEASE, THE COMPANY SHALL HAVE NO OBLIGATION TO PROVIDE
EMPLOYEE THE BENEFITS SET FORTH IN THE SETTLEMENT AGREEMENT.
3. Employee agrees that he will not commence any action or proceeding of
any nature whatsoever against any Releasee, and that he will not seek or be
entitled to any award of equitable or monetary relief in any action or
proceeding brought on his behalf, arising out of the matters released by
Employee under this Release.
__________________________
Xxxxx Xxxxxxxx
9
