WHEELING-PITTSBURGH STEEL CORPORATION 2006 EMPLOYMENT AGREEMENT
Exhibit 10.1
WHEELING-PITTSBURGH STEEL CORPORATION
2006 EMPLOYMENT AGREEMENT
2006 EMPLOYMENT AGREEMENT
This Agreement (“Agreement”), effective as of April 1, 2006 (the “Effective Date”), replaces in its
entirety, the Amended and Restated Retention Agreement entered into as of February 16, 2005 (the
“Prior Agreement”), by and between Xxxxx X. Xxxxxxx, currently residing at 0000 Xxxx Xxx Xxxx Xxxx,
Xxxxx, XX 00000, and WHEELING-PITTSBURGH STEEL CORPORATION, a corporation organized under the laws
of the State of Delaware (the “Company”) and a wholly-owned subsidiary of WHEELING-PITTSBURGH
CORPORATION, a corporation also organized under the laws of the State of Delaware (the “Parent”).
In consideration of the covenants and conditions herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged by each party, the parties hereby agree as
follows:
| 1. | EMPLOYMENT. |
The Company shall employ the Executive commencing on the Effective Date, and the Executive hereby
accepts such employment, all upon the terms and conditions set forth herein.
| 2. | DUTIES AND AUTHORITY. |
(a) POSITION. Executive shall serve as the Chief Executive Officer of the Company, with those
authorities, duties and responsibilities customary to that position and such other authorities,
duties and responsibilities as the Board of Directors of Parent (the “Board”) may reasonably assign
the Executive from time to time. The Executive shall use his best efforts, including the highest
standards of professional competence and integrity, and shall devote substantially all his business
time and effort, in and to his employment hereunder, and shall not engage in any other business
activity which would conflict with the rendition of his services hereunder, except that the
Executive may hold directorships or related positions in charitable, educational or not-for-profit
organizations, or directorships in business organizations if approved by the Board, and make
passive investments, which do not interfere with the Executive’s day-to-day acquittal of his
responsibilities to the Company.
(b) BOARD MEMBERSHIP. Executive shall be nominated for election as a director of Parent by
the shareholders at each annual meeting during the term of this Agreement (or at each annual
meeting at which his then current term as a director would otherwise expire), and if so elected by
the shareholders, Executive shall serve as
a member of the Board. The Executive acknowledges that the election of directors is the
prerogative of the shareholders, acting in their sole discretion and, accordingly, that
the failure
of the shareholders to approve his nomination to membership on the Board for any term does not
constitute a violation of this Agreement. In the event the Executive is elected as a member of the
Board, any determination or action required of or permitted to the Board under this Agreement shall
exclude the vote of the Executive. In addition, in the event the Executive is elected as a member
of the Board, the Executive shall recuse himself from any such Board’s discussion pertaining to the
terms and conditions of his employment by the Company, whether pursuant to this Agreement or
otherwise.
| 3. | TERM. |
(a) GENERAL. This Agreement shall have effect as of the Effective Date, and shall remain in
effect until March 31, 2007 subject to earlier termination under Section 5 or extension as
described below. The period from the Effective Date until this Agreement shall have expired in
accordance with this Section or been terminated in accordance with Section 5 is hereafter referred
to as “the term hereof” or “the term of this Agreement.” The term hereof shall be extended
automatically for an additional year as of April 1, 2007 and as of each subsequent annual
anniversary of such date (each such extension date is referred to herein as a “Renewal Date”)
unless at least one hundred twenty (120) days prior to any such Renewal Date either party shall
have given notice to the other party that the term of this Agreement shall not be so extended.
(b) SURVIVAL OF CERTAIN PROVISIONS. Notwithstanding anything else herein contained, the
provisions of Sections 4 through 7 hereof shall survive the termination of this Agreement and of
the Executive’s employment hereunder.
| 4. | COMPENSATION. |
In return for his services hereunder, the Executive shall be entitled to (i) the Salary as
specified below, (ii) bonuses, to the extent provided below, and (iii) certain fringe benefits, to
the extent provided below.
(a) SALARY. Starting with the Effective Date, the Company shall pay the Executive, in
accordance with the Company’s customary payroll practices for executives, salary at an annual rate
of $520,000, subject to annual review and upward adjustment at the determination of the Board (as
so adjusted, the Executive’s “Salary”).
(b) BONUS. In addition to the Salary, the Executive shall be to entitled to participate in
the Company’s existing short-term incentive plan for executives, as the same may be amended from
time to time by the Board. The Board may also award other bonuses from time to time in its
discretion.
(c) LONG-TERM INCENTIVES. The Executive shall be awarded such equity incentive awards as the
Board or the Compensation Committee shall determine from time to time in their discretion.
(d) FRINGE BENEFITS. The Executive will be eligible for and entitled to participate in other
benefits maintained by the Company for its senior executive officers,
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as such benefits may be
modified from time to time for all such employees, such as its medical, dental, 401(k), accident,
disability, and life insurance benefits, on a basis not less favorable than that applicable to
other executives of the Company. Any such participation shall be subject to (i) the terms of the
applicable plan documents, (ii) generally applicable policies of the Company and (iii) the
discretion of the Board or any administrative or other committee provided for in or contemplated by
such plan, exercised in accordance with applicable law. The Executive will also be entitled to the
following:
(i) Subject to the Company’s standard policies, four (4) weeks of vacation per calendar year
(or any longer period as shall be provided under the Company’s general vacation policies), without
reduction in Salary, to be taken at such times and intervals as shall be determined by the
Executive subject to the reasonable business needs of the Company and to Company policies as in
effect from time.
(ii) Appropriate office space, administrative support, e.g., secretarial assistance, and such
other facilities and services as are suitable to the Executive’s position and adequate for the
performance of the Executive’s duties.
(iii) The use of a company car. The Company shall be responsible for the purchase price or
lease payment and shall pay or reimburse all of the Executive’s expenses for gasoline for use of
the Company car, and maintenance and insurance of his Company car, subject to such reasonable
reporting requirements as may be specified by the Company and/or the Internal Revenue Service. The
Executive shall keep and submit records of his business and personal use of the automobile. The
Executive acknowledges that his personal use of the automobile will result in additional taxable
income to him.
(iv) Up to $10,000 per annum in reimbursement of legal and personal tax preparation and
planning assistance.
(v) Payment or reimbursement of the cost of membership for himself and his immediate family in
one country club and one business club, and business-related use thereof.
(vi) Payment or reimbursement of the cost, not covered by health insurance, of one
comprehensive physical examination during each year during the term of this Agreement.
Executive acknowledges that he will have no right to cash compensation in lieu of any of the
specific foregoing fringe benefits except with respect to vacation pay, and then only to the
extent, if any, allowed by the Company’s vacation pay policies as in effect from time to time.
(e) EXPENSES. The Executive will be entitled to reimbursement of all reasonable expenses, in
accordance with the Company’s policy as in effect from time to
time and on a basis not less favorable than that applicable to other executives of the
Company, including, without limitation, telephone, travel and entertainment expenses
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incurred by
the Executive in connection with the business of the Company, subject to such reasonable
substantiation and documentation as may be specified by the Company.
(f) INDEMNIFICATION. The Company shall, and the Company shall use its best efforts to cause
the Parent and any subsidiaries or affiliates it may now or hereafter have to, indemnify the
Executive to the maximum extent permitted by law and regulation in connection with any liability,
expense or damage which the Executive incurs as a result of the Executive’s employment and
positions with the Company and its current or future subsidiaries as contemplated by this
Agreement, provided that the Executive shall not be indemnified with respect to any matter as to
which he shall have been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interest of the Company and its subsidiaries.
The Company, on behalf of itself and its current and future subsidiaries, hereby confirms that the
occupancy of all offices and positions which in the future are or were occupied or held by the
Executive in connection with his employment under this Agreement have been so occupied or held at
the request of and for the benefit of the Company and its subsidiaries for purposes of the
Executive’s entitlement to indemnification under applicable provisions of the respective articles
of organization and/or other similar documents of the Company and its subsidiaries.
Expenses incurred by the Executive in defending a claim, action, suit, investigation or proceeding
shall be paid by the Company in advance of the final disposition thereof upon the receipt by the
Company of an undertaking by the Executive to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified hereunder. The foregoing rights are not
exclusive and shall not limit any rights accruing to the Executive under any other agreement or
contract or under applicable law.
(g) PARACHUTE PAYMENT TAXES. Notwithstanding any other provisions of this Agreement, in the
event that any payment or benefit under this Agreement or any other agreement or arrangement of the
Company received or to be received by the Executive in connection with a Change in Control or the
termination of the Executive’s employment (all such payments and benefits, the “Total Payments”) is
determined to be subject (in whole or part) to the excise tax imposed by Section 4999 of the Code
(together with any interest or penalties imposed with respect to such excise tax, the “Excise
Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”)
in an amount such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including without limitation any income taxes and
Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount equal to the Excise
Tax. All determinations required to be made under this Section 4(g), including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by the Company’s accountants or such
other certified public accounting firm reasonably acceptable to the
Company as may be designated by the Executive which shall provide detailed supporting
calculations both to the Company and the Executive.
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| 5. | TERMINATION OF EMPLOYMENT AND EFFECTS THEREOF. |
(a) TERMINATION. This Agreement and the Executive’s employment under this Agreement may be
terminated only in the following circumstances. On any termination in accordance with this
Section, the Executive (or in the event of his death, his estate) shall be entitled to the
supplemental pension payment or payments described in (d) below if then earned. In addition, the
Executive (or in the event of his death, his estate) shall be entitled to his then Salary earned
but unpaid through the end of the month in which termination (including death) occurred. The
Company shall have only such further obligations to the Executive (or in the event of his death,
his estate), if any, as are specified below under the applicable termination provision.
(i) UPON DEATH. In the event of the Executive’s death during the term hereof, the Executive’s
employment hereunder shall immediately and automatically terminate.
(ii) AS A RESULT OF DISABILITY. In the event that the Executive becomes disabled during the
term hereof within the meaning of the Company’s then applicable long-term disability plan, the
Company may terminate the Executive’s employment without further obligation upon notice to the
Executive. In the event of such disability, the Executive will continue to receive his base salary
and benefits under Section 4 hereof until the earlier of his death or the date the Executive
becomes eligible for disability income under the Company’s then applicable long-term disability
plan or workers’ compensation insurance plan.
(iii) BY THE COMPANY FOR CAUSE. The Company may terminate the Executive’s employment for
Cause (as defined in subsection (b) below) at any time upon notice to the Executive setting forth
in reasonable detail the nature of such Cause.
(iv) BY THE COMPANY OTHER THAN FOR CAUSE. The Company may terminate Executive’s employment
other than for Cause upon thirty (30) days notice to the Executive (or at its option immediately
with thirty (30) days continued compensation, including then Salary and benefits, in lieu of such
notice). In the event of such termination, Executive (or in the event of his death following
termination, his estate) shall be entitled only to the additional amounts described in subparagraph
(A) below and the continuation of health insurance benefits described in subparagraph (B) below:
(A) Salary and Pro Rata Bonus Payment. If the Executive’s employment is terminated by the
Company without Cause, the Executive shall be entitled to a payment equal to three (3) times his
annual Salary at the highest annualized rate in effect during the one year immediately preceding
the date of the date of termination, payable in a single lump sum within thirty (30) days of
termination, and a pro rata bonus in an amount determined under the terms of the applicable Company
bonus plan, payable at the same time as executive bonuses are paid generally under the
applicable Company bonus plan, but in no event later than March 15 of the year following the year
in which the termination occurs.
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(B) Health Care Continuation. If at his termination of employment by the Company without Cause
the Executive is eligible to and timely elects continued health coverage under Sections 601-607 of
ERISA (“COBRA Continuation”) then, for the period of such COBRA Continuation, the Company shall
also pay that share of the premium cost of Executive’s COBRA Continuation (and that of his eligible
dependents also electing COBRA Continuation) in the Company’s group health plan as it pays for
active employees of the Company and their dependents generally.
(v) BY THE EXECUTIVE. Executive may terminate his employment and this Agreement for any or no
reason whatsoever at any time. Except as provided in the next sentence, the Executive shall give
at least sixty (60) days’ advance notice of any such termination. In the event the Executive gives
notice of termination to the Company within six (6) months following a Change of Control, but in no
event later than February 15 of the calendar year next following the calendar year in which the
Change of Control occurs, or for and within sixty (60) days of having Good Reason (whether before,
on, or after a Change of Control), but in no event later than February 15 of the calendar year next
following the calendar year in which the Good Reason event occurs, his resignation shall be treated
as a termination of employment by the Company without Cause for purposes of entitling him to, and
he shall then be entitled to, the Salary and pro rata bonus payment and COBRA Continuation on and
subject to the terms and conditions applicable in such circumstances under paragraph (iv) above. In
the event the Executive resigns other than in the circumstances described in the preceding
sentence, he shall not be entitled to any additional Salary or pro rata bonus payment or COBRA
Continuation. The Company may at its sole option waive the requirement of advance notice and
decline to accept the Executive’s service for any period following its receipt of notice, but in
that event Executive shall be entitled to continued compensation in accordance with Section 4 for
the entirety of the otherwise applicable notice period as well as Salary and pro rata bonus payment
and COBRA Continuation thereafter in accordance with this paragraph if applicable.
(b) DEFINITIONS. For these purposes:
(i) “Cause” means the Executive has: (A) been convicted of, or has pled guilty or nolo
contendere to any felony, or any misdemeanor involving moral turpitude under the laws of the United
States or any state or political subdivisions thereof; (B) committed a breach of duty of loyalty
which is materially detrimental to the Company; (C) materially violated any provision of Section 6
of this Agreement; (D) failed to perform or adhere to explicitly stated duties or guidelines of
employment or to follow the directives of the Board (which are not unlawful to perform or to adhere
to or follow and which are within the scope of Executive’s duties) following a written warning that
if such failure continues it will be deemed a basis for a “For Cause” dismissal; or (E) acted with
gross negligence or willful misconduct in the performance of the Executive’s duties.
No act, or failure to act, on the Executive’s part shall be deemed “willful” unless done, or
omitted to be done, by the Executive not in good faith and without reasonable belief that the
Executive’s act, or failure to act, was in the best interest of the Company. Following
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a Change of
Control, subsection (D) above shall be deleted from this definition of “Cause.”
(ii) “Change of Control” means the occurrence of any of the following: (A) a merger or
consolidation of Parent or the Company with or into another person or the sale, transfer, or other
disposition of all or substantially all of the Parent’s or Company’s assets to one or more other
persons in a single transaction or series of related transactions, unless securities possessing
more than 50% of the total combined voting power of the survivor’s or acquirer’s outstanding
securities (or the securities of any parent thereof) are held by a person or persons who held
securities possessing more than 50% of the total combined voting power of Parent immediately prior
to that transaction; (B) any person or group of persons (within the meaning of Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended and in effect from time to time), other than the
Parent, the Company or an affiliate, directly or indirectly acquires beneficial ownership
(determined pursuant to Securities and Exchange Commission Rule 13d-3 promulgated under the said
Exchange Act) of securities possessing more than 50% of the total combined voting power of the
Parent’s outstanding securities pursuant to a tender or exchange offer made directly to the
Parent’s stockholders; or (C) over a period of 36 consecutive months or less, there is a change in
the composition of the Board such that a majority of the members of the Board (rounded up to the
next whole number, if a fraction) ceases to be composed of individuals who either (1) have been
members of the Board continuously since the beginning of the 36-month period referred to above or
(2) have been elected or nominated for election as Board members during such period by at least a
majority of the members Board described in the preceding clause (1) who were still in office at the
time that election or nomination was approved by the Board, provided, however, that a Change of
Control shall be deemed to have occurred in any event if, by reason of one or more actual or
threatened proxy contests for the election of directors or otherwise, a majority of the Board shall
consist of individuals, other than directors referred to in clause (1) above, whose election as
members of the Board occur within such 36-month period at the request or on behalf of the same
person or group of persons (within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended and in effect from time to time).
(iii) “Good Reason” means (A) the assignment to the Executive of any duties inconsistent with
the Executive’s status as the Chief Executive Officer of the Company or a meaningful alteration,
adverse to the Executive, in the nature or status of the Executive’s responsibilities; (B)
permanent relocation of his principal place of employment to a location more than seventy-five
miles distant from his principal place of employment as of the Effective Date; (C) a reduction by
the Company in the Executive’s annual base salary as in effect on the date hereof or as the same
may be increased from time to time except for across-the-board salary reductions similarly
affecting all senior executives of the Company and all senior executives of any person in control
of the Company; (D) the failure by the Company to continue in effect any compensation plan in which
the Executive participates which is material to the Executive’s total
compensation, or the failure by the Company to continue the Executive’s participation therein
on a basis not materially less favorable, both in terms of the amount of benefits provided and the
level of the Executive’s participation relative to other participants; (E)
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the failure by the
Company to continue to provide the Executive with benefits substantially similar to those enjoyed
by the Executive under any of the Company’s pension, life insurance, medical, health and accident,
or disability plans at any time subsequent to the Effective Date, or the taking of any action by
the Company which would directly or indirectly materially reduce any of such benefits or deprive
the Executive of any material fringe benefit enjoyed by the Executive at any time subsequent to the
Effective Date; or (F) the receipt by the Executive of notice from the Company in accordance with
Section 3(a) that the term of this Agreement shall not be extended as provided in that section;
provided, however, that the events described in (D) and (E) above shall not constitute “Good
Reason” where they are the direct result of the elimination or modification of benefit plans or
arrangements by the Company with respect to employees generally.
(c) CESSATION OF AUTHORITY ON TERMINATION. Immediately upon the Executive terminating or
being terminated from his position with the Company for any reason or no reason, the Executive will
stop serving the functions of the terminated or expired position, or any other positions with any
affiliate, and shall be without any of the authority of or responsible for any position. On request
of the Board, at any time following his termination of employment for any reason or no reason, the
Executive shall resign from the Board if then a member and the board of directors of the Company or
any other subsidiary of Parent or which he is then a member.
(d) NO OBLIGATION TO MITIGATE. Executive shall not be required to seek other employment or
income to reduce any amounts payable to the Executive by the Company under this Section. Further,
the amount of any payment or benefit provided for by this Section shall not be reduced by any
compensation earned by the Executive as the result of employment by another employer, retirement
benefits, by offset against any amount claimed to be owed by the Executive to the Company, or
otherwise.
(e) RELEASE OF CLAIMS. Notwithstanding the foregoing, the Executive shall not be entitled to
any additional amounts under this Section unless within twenty-one (21) days following his
termination he shall have executed and delivered to the Company a general release of claims in the
form attached hereto as Exhibit A.
(f) SUPPLEMENTAL PENSION. Section 5(f) of the Prior Agreement provided for a supplemental
pension to be paid to the Executive under the terms and conditions specified in that section. This
supplemental pension arrangement is subject, in whole or in part, to the requirements of Section
409A of the Internal Revenue Code. Pursuant to the provisions of the proposed regulations and
other published guidance of the Internal Revenue Service under Section 409A, and the payment
election made thereunder by the Executive prior to January 1, 2006, the Company, in full
satisfaction of its obligations to the executive with respect to such supplemental pension, shall
make a lump sum payment to the Executive on August 31, 2006 of $1,737,477 less any and all
applicable tax withholdings. The parties acknowledge that this payment on August
31, 2006 would have been due at such time under the Executive’s predecessor agreement, the
Post-Bankruptcy Amended and Restated Retention Agreement, effective as of August 1, 2003. At no
time shall the Executive be deemed to have any
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right, title, or interest in or to any specified
asset or assets of the Company by reason of his right to the foregoing payment. The Company
reserves the right in its sole and exclusive discretion to insure or otherwise provide for the
obligations of the Company undertaken in this subsection or to refrain from the same, and to
determine the extent, nature, and method thereof. Any rights the Executive may have under this
section shall be those of a general, unsecured creditor of the Company. In the event of the
Executive’s death prior to payment of this lump sum amount, such payment shall be made to the
Executive’s surviving spouse, and if none, to the Executive’s estate.
| 6. | PROVISIONS RELATING TO EXECUTIVE CONDUCT AND TERMINATION OF EMPLOYMENT. |
(a) CONFIDENTIALITY. The Executive recognizes and acknowledges that certain assets of the
Company constitute Confidential Information. The term “Confidential Information” as used in this
Agreement shall mean all information which is known only to the Executive or the Company, other
employees or others in a confidential relationship with the Company and any persons controlling,
controlled by or under common control with the Company (each, an “Affiliate”) and their respective
employees, officers and partners), and relating to the Company’ or any Affiliate’s business
(including, without limitation, information regarding clients, customers, pricing policies, methods
of operation, proprietary computer programs, sales, products, profits, costs, markets, key
personnel, formulae, product applications, technical processes, and trade secrets), as such
information may exist from time to time, which the Executive acquired or obtained by virtue of work
performed for the Company, or which the Executive may acquire or may have acquired knowledge of
during the performance of said work. The Executive agrees that at all times during his employment
and thereafter (including periods after the term of this Agreement), he will keep and maintain all
Confidential Information and all of the affairs of the Company and its Affiliates confidential, and
will not, except (1) as necessary for the performance of his responsibilities hereunder or (2) as
required by judicial process and after three days prior notice to the Company unless required
earlier by a court order or a legal requirement, disclose to any person for any reason or purpose
whatsoever, directly or indirectly, all or any part of the Confidential Information of the Company
and its Affiliates. The Executive is not bound by the restrictions in this paragraph with respect
to any information that becomes public other than as a consequence of the breach by the Executive
of his confidentiality obligations hereunder or is disclosed without an obligation of
confidentiality. The Executive can disclose all information to his personal advisors subject to
becoming liable for any violation by them of Executive’s confidentiality obligations.
(b) RETURN OF MATERIALS. The Executive agrees that on the termination of his employment,
however such termination may occur, the Executive will promptly return to the Company all materials
and other property from time to time held by the Executive and proprietary to the Company including
without limitation any documents
incorporating, reflecting or reproducing in whole or in part any Confidential Information,
credit cards, and the like.
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(c) NON-SOLICITATION AND NON-COMPETE. The Executive agrees that,
(i) during the term hereof, he will not, directly or indirectly, either as a principal, agent,
employee, employer, stockholder, co-partner or in any other capacity whatsoever, engage in any
outside activity, whether or not competitive with the business of the Company, that could
foreseeably give rise to a conflict of interest or otherwise interfere with his duties and
obligations to the Company;
(ii) during the term hereof and for twenty-four (24) months after the term, he will not,
directly or indirectly, either as a principal, agent, employee, employer, stockholder, co-partner
or in any other capacity whatsoever, solicit, hire or attempt to hire, or assist others in
soliciting, hiring or attempting to hire, any individual employed by the Company at any time while
the Executive was also so employed, or encourage any such individual to terminate his or her
relationship with the Company; and
(iii) during the term hereof and for twenty-four (24) months after the term, he will not,
directly or indirectly, either as a principal, agent, employee, employer, stockholder, co-partner
or in any other capacity whatsoever, engage in or undertake any planning for any activity which is
competitive with the business of the Company, as conducted or under consideration at any time
during his employment by the Company.
(d) REASONABLENESS OF RESTRICTIONS. The restrictions against activities set forth in
subsection (c) above are considered by the parties to be reasonable for the purposes of protecting
the business of the Company. If any restriction is found by a court of competent jurisdiction to
be unenforceable because it extends for too long a period of time, over too broad a range of
activities or in too large a geographic area, that restriction shall be interpreted to extend only
over the maximum period of time, range of activities or geographic area as to which it may be
enforceable.
(e) NONINTERFERENCE. In the event of any dispute under this Agreement or otherwise relating
to the Executive’s relationship with the Company, any Affiliate of the Company, or their respective
principals or management, whether or not during the term of this Agreement, the Executive agrees
not to bring any legal proceeding or take any legal action to seek to enjoin or otherwise impede
the purchase, sale, financing, refinancing, development, establishment or operation of any business
venture or entity in which any of such persons or entities has any interest.
| 7. | MISCELLANEOUS. |
(a) FREEDOM TO CONTRACT. The Executive represents that he is free to enter into this
Agreement and carry out his obligations hereunder without any conflict with any prior agreements,
and that he has not made and will not make any agreement in conflict with this Agreement.
(b) ENTIRE AGREEMENT. This Agreement represents the entire and only understanding between the
parties on the subject matter hereof and supersedes any other agreements or understandings between
them on such subject matter. Without
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limiting the generality of the foregoing, the Prior Agreement
is terminated in its entirety as of the Effective Date.
(c) SPECIFIC ENFORCEMENT. The parties acknowledge and agree that the Executive’s breach of
the provisions of Sections 6 and 7 of this Agreement may cause irreparable harm to the Company,
that the remedy of damages will not be adequate for the enforcement of such provisions, and that
such provisions may be enforced by equitable relief, including injunctive relief, which relief
shall be cumulative and in addition to any other relief to which the Company may be entitled.
(d) BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the heirs, executors, administrators, successors and assigns of the respective
parties. Without the express written consent of the other party, neither the Company nor the
Executive may assign any duties or right or interest hereunder or right to receive any money
hereunder and any such assignment shall be void; provided, however, that without the Executive’s
consent the Company may assign its rights and obligations hereunder in their entirety to any
successor to all or substantially all of its business, whether affected by merger or otherwise.
The preceding sentence, however, shall not prevent the transfer of any right or interest to receive
any money hereunder by the Executive by way of testamentary disposition or intestate succession.
The Company shall require any successor or assign (whether direct or indirect, by purchase, merger,
reorganization, consolidation, acquisition or property or stock, liquidation or otherwise) to all
or a significant portion of the assets of the Company, by agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if no such succession
had taken place. Regardless of whether such agreement is executed by a successor, this Agreement
shall continue to be binding upon the Company and any successor and assign shall be deemed the
“Company” for purposes of this Agreement.
(e) SEVERABILITY. In the event any provision of this Agreement shall be determined in any
circumstances to be invalid or unenforceable, such determination shall not affect or impair any
other provision of this Agreement or the enforcement of such provision in other appropriate
circumstances.
(f) NOTICES. All notices and other communications hereunder shall be in writing or by written
telecommunication, and shall be deemed to have been duly given if delivered personally or if sent
by overnight courier or by certified mail, return receipt requested, postage prepaid or sent by
written telecommunication or telecopy, to the relevant address set forth below, or to such other
address as the recipient of such notice or communication shall have specified to the other party
hereto in accordance with this Section 7(f):
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If to the Company, to:
Wheeling-Pittsburgh Steel Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopy: 000-000-0000
with a copy to the Company’s Chief Financial Officer at the same address.
If to the Executive, at his last residence shown on the records of the Company. Any such notice
shall be deemed to have been received (i) if delivered personally, when received, (ii) if sent by
overnight courier, when sent, (iii) if mailed, two (2) days after being mailed as described above
and (iv) in the case of facsimile transmission, when confirmed by facsimile machine report.
(g) ARBITRATION OF CLAIMS. The parties hereto agree that except as provided in Section 7(c)
above any dispute hereunder, or otherwise relating to the Executive’s relationship with the
Company, whether or not arising during the term of this Agreement, shall be resolved by submission
to final and binding arbitration held in Pittsburgh, Pennsylvania or as otherwise mutually agreed
under the National Rules for the Resolution of Employment Disputes of the American Arbitration
Association then existing, and judgment on any arbitration award may be entered in any court of
competent jurisdiction. Any cause of action or matter in dispute is hereby waived unless
arbitration proceedings are initiated by the complaining party within one (1) year from the later
of the accrual of the cause of action or the date on which the cause of action should reasonably
have been discovered. The Executive and the Company agree any such arbitrator shall not be
empowered to amend or modify this Agreement or any other relevant agreement in any respect and
further agree that the arbitrator shall not have the jurisdiction to award punitive damages and
shall be without the authority to award relief other than monetary damages. Executive and the
Company understand and agree that the Company shall bear the arbitrator’s fee and any other type of
expense or cost that Executive would not be required to bear if Executive were free to bring the
dispute or claim in court as well as any other expense or cost that is unique to arbitration.
Except as provided in Section 7(i) below, Executive and the Company shall each pay their own
attorneys’ fees incurred in connection with an arbitration, and the arbitrator will not have
authority to award attorneys’ fees unless a statute or contract at issue in the dispute authorizes
the award of attorneys’ fees to the prevailing party, in which case the arbitrator shall have the
authority to make an award of attorneys’ fees as required or permitted by applicable law. If there
is a dispute as to whether Executive or the Company is the prevailing party, the arbitrator will
decide this issue. Any cause of action or matter in dispute is hereby waived unless arbitration
proceedings are initiated by the complaining party within one (1) year from the later of the
accrual of the cause of action or the date on which the cause of action should reasonably have been
discovered.
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(h) JURY & PUNITIVE DAMAGES WAIVER. EACH PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS THAT HE OR
IT MAY HAVE TO HAVE ANY DISPUTE (WHETHER OR NOT ARISING DURING THE TERM OF THIS AGREEMENT)
HEREUNDER OR OTHERWISE RELATING TO THE EXECUTIVE’S RELATIONSHIP WITH THE EMPLOYER OR ANY AFFILIATE
TRIED BEFORE OR DETERMINED BY A JURY OR TO CLAIM OR RECOVER PUNITIVE DAMAGES.
(i) REIMBURSEMENT OF LEGAL FEES. In the event that it shall be necessary or desirable for the
Executive to retain legal counsel or incur other costs and expenses in connection with the
enforcement of any or all of his rights under Agreement, and provided that the Executive
substantially prevails in the enforcement of such rights, the Company shall pay (or the Executive
shall be entitled to recover from the Company, as the case may be) the Executive’s reasonable
attorneys’ fees and costs and expenses in connection with the enforcement of his rights, including
the enforcement of any arbitration award, up to $50,000 in the aggregate.
(j) AMENDMENT. This Agreement may be modified only by an instrument in writing executed by
the parties hereto.
(k) INTERPRETATIVE MATTERS; COUNTERPARTS. The headings of sections of this Agreement are for
convenience of reference only and shall not affect its meaning or construction. The language used
in this Agreement will be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction will be applied against any party. No delay or omission
by either party hereto in exercising any right, power or privilege hereunder shall impair such
right, power or privilege, nor shall any single or partial exercise of any such right, power or
privilege preclude any further exercise thereof or the exercise of any other right, power or
privilege. This Agreement may be executed in multiple counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument. In making
proof of this Agreement it shall not be necessary to produce or account for more than one such
counterpart.
(l) GOVERNING LAW. This Agreement is to be governed and construed according to the internal
substantive laws of the Commonwealth of Pennsylvania.
(m) CONFLICTS. To the extent that this Agreement conflicts with any provision, in any
handbook, policy manual, rule or regulation, the provisions of this Agreement shall take precedent.
(n) CONSULTATION WITH COUNSEL. The Executive acknowledges that he has had a full and complete
opportunity to consult with counsel or other advisers of his own choosing concerning the terms,
enforceability and implications of this Agreement, and that the Company has made any
representations or warranties to the Executive concerning the terms, enforceability and
implications of this Agreement other than as are reflected in this Agreement.
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(o) WITHHOLDING. Any payments provided for in this Agreement shall be paid net of any
applicable tax withholding required under federal, state or local law.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date and year
first above written.
| WHEELING-PITTSBURGH STEEL CORPORATION | ||||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Title: | Secretary | |||||
| EXECUTIVE | ||||||
| /s/ Xxxxx X. Xxxxxxx | ||||||
| Xxxxx X. Xxxxxxx |
||||||
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EXHIBIT A
RELEASE OF CLAIMS
In exchange for the severance pay and other benefits set forth in my 2006 Employment Agreement with
Wheeling-Pittsburgh Steel Corporation (the “Company”) effective as of April 1, 2006 (as amended
through the date hereof, the “Employment Agreement”), I forever give up, waive and release any and
all claims, charges, complaints, grievances or promises of any and every kind I may have up to the
date of this Release against the Company, its parent, Wheeling-Pittsburgh Corporation, and other
affiliates and its and their directors, officers and employees, and related persons, including,
without limitation, my rights under Title VII of the Civil Rights Act of 1964, as amended by the
Civil Rights Act of 1991, the Employee Retirement Income Security Act (“ERISA”), the Equal Pay Act,
the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”) and
other federal and state statutes prohibiting discrimination on the basis of age, sex, race, color,
handicap, religion and national origin and any common law claims, including without limitation,
claims for defamation, intentional infliction of emotional distress, intentional interference with
contract, negligent infliction of emotional distress, personal injury, breach of contract, unpaid
wages or compensation, or claims for unreimbursed expenses. This release shall not extend to any
claim to amounts due me in accordance with the terms of my Employment Agreement after termination
of my employment or to claims to indemnity I may have under the terms of my Employment Agreement,
applicable law, or the Company’s or its parent’s articles of organization or bylaws for having
served as a director, officer or employee of the Company, its parent or any affiliate. I
acknowledge that I have been advised of my right to consult an attorney before I sign this Release
and that I have twenty-one (21) days to consider whether to sign this Release. If the Release is
not received by the Company at the end of the twenty-one (21) day period, it will be considered
expired and withdrawn and the Company’s severance obligations under my Employment Agreement void.
If I execute this Release prior to the end of the twenty-one (21) day period that has been provided
for me to consider it, I agree and acknowledge that the prior execution was a knowing and voluntary
waiver of my right to consider this Release for a full twenty-one (21) days, and was due to my
conclusion that I had ample time in which to consider and understand this Release, and in which to
review this Release with my counsel.
Nothing in this Release shall be construed to affect the Equal Employment Opportunity Commission’s
(“Commission”) independent right and responsibility to enforce the law. I understand, however,
that, while this Release does not affect my right to file a charge or participate in an
investigation or proceeding conducted by the Commission, it does bar any claim I might have to
receive monetary damages in connection with any Commission proceeding concerning matters covered by
this Release.
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I understand I have the right to revoke this Release within seven (7) days of signing it. I
understand that to revoke this Release, I must notice the Company in writing in accordance with the
notice procedures set forth in my Employment Agreement.
| Dated: |
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