EXHIBIT 10.7(d)
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
into as of the 22nd day of June 2006 (the "Effective Date"), by and between WCI
Steel, Inc. (formerly known as WCI Steel Acquisition Inc.), a Delaware
corporation (the "Employer"), and Xxxxxx X. Xxxxxxx, an individual resident in
the state of Ohio (the "Executive").
RECITALS
The following is a mutual statement by the parties of certain factual matters
that form the basis of this Agreement.
The Employer has determined that in order to achieve continuity and stability of
its operations, to ensure long-term plans of the Employer are effectively
implemented and to provide reasonable security to the Executive to enable
Executive to objectively and without distraction perform Executive's assigned
duties and responsibilities, it is necessary and desirable to enter into an
employment contract.
A. The Executive desires to be employed by the Employer, and the Employer
has determined that retaining the Executive's services is in the Employer's best
interest; and
B. The parties hereto intend that this Agreement shall replace and
supersede all prior agreements that heretofore may have existed between the
parties.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings
specified or referred to in this Article I.
"AGREEMENT" means this Executive Employment Agreement, including any and
all exhibits and schedules hereto, as amended from time to time.
"AFFILIATE" means, with respect to a person, another person that directly,
or indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such person.
"BASIC COMPENSATION" means Salary and Benefits.
"BENEFITS" shall have the meaning set forth in Section 3.1(b).
"BOARD OF DIRECTORS" means the board of directors of the Employer.
"CHANGE IN CONTROL" means the first to occur of the following events:
(A) the acquisition, after the date hereof, by an individual, entity or
group within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of fifty percent (50%) or more of the combined
voting power of the Voting Securities of the Employer then outstanding
after giving effect to such acquisition; or
(B) the Employer is merged or consolidated or reorganized into or with
another corporation or other legal entity, and as a result of such
merger, consolidation or reorganization less than a majority of the
combined voting power of the Voting Securities of such corporation or
entity immediately after such transaction is held in the aggregate by
the holders of Voting Securities of the Employer immediately prior to
such merger, consolidation or reorganization; or
(C) the Employer sells or otherwise transfers all or substantially all of
its assets (including but not limited to its Affiliates) to another
corporation or legal entity in one transaction or a series of related
transactions, and as a result of such sale(s) or transfer(s), less
than a majority of the combined voting power of the then outstanding
Voting Securities of such corporation or entity immediately after such
sale or transfer is held in the aggregate by the holders of Voting
Securities of the Employer immediately prior to such sale or transfer;
or
(D) the approval by the Board of Directors or the stockholders of the
Employer of a complete or substantial liquidation or dissolution of
the Employer.
Notwithstanding the foregoing, unless otherwise determined in a specific
case by majority vote of the Board of Directors, a Change in Control shall
not be deemed to have occurred hereunder solely because (i) the Employer,
(ii) an Affiliate, (iii) any one or more members of executive management of
the Employer or their Affiliates, (iv) any employee stock ownership plan or
any other employee benefit plan of the Employer or any Affiliate or (v) any
combination of the persons referred to in the preceding clauses (i) through
(iv) becomes the actual or beneficial owner (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of fifty percent (50%) or more of
the Voting Securities of the Employer or any successor thereto. In
addition, under no circumstance shall a filing of a bankruptcy petition or
the sale of assets in connection with a bankruptcy be considered to be a
Change in Control.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONFIDENTIAL INFORMATION" means any and all:
(A) trade secrets concerning the business and affairs of the Employer,
product specifications, data, know-how, formulae, compositions, processes,
designs, sketches, photographs, graphs, drawings, samples, inventions and ideas,
past, current, and planned research and development, current and planned
manufacturing or distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market
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studies, business plans, computer software and programs (including object code
and source code), computer software and database technologies, systems,
structures, and architectures (and related formulae, compositions, processes,
improvements, devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information), and any other information, however
documented, that is a trade secret under any applicable law; and
(B) information concerning the business and affairs of the Employer (which
includes historical financial statements, financial projections and budgets,
historical and projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel, personnel training and techniques and
materials however documented; and
(C) notes, analysis, compilations, studies, summaries, and other material
prepared by or for the Employer containing or based, in whole or in part, on any
information included in the foregoing.
"DISABILITY" shall have the meaning set forth in Section 6.2
"EFFECTIVE DATE" means the date stated in the first paragraph of this
Agreement.
"EMPLOYEE INVENTION" means any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial design
(whether it can be registered or not), any mask work, however fixed or encoded,
that is suitable to be fixed, embedded or programmed in a semiconductor product
(whether recordable or not), and any work of authorship (whether or not
copyright protection may be obtained for it) created, conceived, or developed by
the Executive, either solely or in conjunction with others, in whole or in part,
at any time while employed by the Employer, that relates in any way to, or is
useful in any manner in, the business then being conducted or proposed to be
conducted by the Employer, and any such item created by the Executive, either
solely or in conjunction with others following termination of the Executive's
employment with the Employer, that is based upon or uses Confidential
Information.
"EMPLOYER" means WCI Steel, Inc., a Delaware corporation. Solely with
respect to the definition of "Confidential Information" and "Employee
Inventions," "Employer" shall also include WCI Steel Corporation, a Ohio
corporation, which transferred substantially all of its assets to WCI Steel,
Inc., a Delaware corporation, pursuant to a plan of reorganization approved by
the bankruptcy court.
"EMPLOYMENT PERIOD" means the term of the Executive's employment under this
Agreement.
"FISCAL YEAR" means the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
"FOR CAUSE" shall have the meaning set forth in Section 6.3.
"FOR GOOD REASON" shall have the meaning set forth in Section 6.4.
"INCENTIVE COMPENSATION" shall have the meaning set forth in Section 3.2.
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"PERSON" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"POST-EMPLOYMENT PERIOD" shall have the meaning set forth in Section 8.2.
"PROPRIETARY ITEMS" shall have the meaning set forth in Section 7.2(a)(iv).
"SALARY" shall have the meaning set forth in Section 3.1(a).
"VOTING SECURITIES" means, with respect to any person, any securities
entitled to vote (including by the execution of action by written consent)
generally in the election of directors of such person (together with direct or
indirect options or other rights to acquire any such securities).
ARTICLE II
EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT. The Employer hereby employs the Executive, and the
Executive hereby accepts employment by the Employer, upon the terms and
conditions set forth in this Agreement.
2.2 TERM. Subject to the provisions of Article VI, the term of the
Executive's employment under this Agreement will begin on the Effective Date and
end on May 1, 2011.
2.3 DUTIES. The Executive shall have such duties as are assigned or
delegated to the Executive by the Board of Directors, any duly authorized
committee thereof, or by the Employer's Chief Executive Officer, and shall
initially serve as Vice-President-Strategy of the Employer. The Executive shall
devote the Executive's entire business time, attention, skill, and energy
exclusively to the business of the Employer, shall use the Executive's best
efforts to promote the success of the Employer's business, and shall cooperate
fully with the Board of Directors and the Employer's Chief Executive Officer in
the advancement of the best interests of the Employer. Nothing in this Section
2.3, however, shall prevent the Executive from engaging in additional activities
in connection with personal investments and community affairs that are not
inconsistent with the Executive's duties under this Agreement. If the Executive
is elected as a director of the Employer or as a director or officer of any of
its affiliates, the Executive shall fulfill his duties as such director or
officer without additional compensation.
ARTICLE III
COMPENSATION
3.1 BASIC COMPENSATION
(A) SALARY. The Executive shall be paid an annual salary of
$230,000.00, subject to an adjustment as provided below (the "Salary"),
which will be payable in equal periodic installments according to the
Employer's customary payroll practices, but not
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less frequently than monthly. The Salary will be reviewed by the Board of
Directors not less frequently than annually and may be adjusted upward or
downward in the sole discretion of the Board of Directors.
(B) BENEFITS. The Executive shall, during the Employment Period, be
permitted to participate in such pension, profit sharing, life insurance,
hospitalization, major medical, and other employee benefit plans of the
Employer that may be in effect from time to time, to the extent the
Executive is eligible under the terms of those plans. During the Employment
Period, the Executive shall be entitled to the use of an automobile leased
or owned by the Employer in connection with the Employer's business. The
make and model of the automobile shall be reasonably satisfactory to
Executive, provided that the Employer's monthly payments in respect thereof
(exclusive of the expenses referred to in the following sentence) shall not
exceed $1,000. In lieu of an automobile furnished by the Employer, the
Employer may provide the Executive with an allowance of up to $1,000 per
month (or such higher amount as may be determined by the Compensation
Committee) to cover the acquisition cost of the Executive's vehicle
(whether in the form of lease payments or installment purchase payments)
and insurance thereon, as well as maintenance costs incurred by the
Executive related to the operation of the vehicle (but not including gas,
parking/garage costs and tolls); provided, however, that the Executive
shall be responsible for keeping appropriate records regarding the use of
said automobile, as instructed by Compensation Committee or the Employer's
accountants. The benefits under this Section 3.1(b) and the Supplemental
Benefits under Section 3.3 below are referred to in this Agreement
collectively, as the "Benefits."
3.2 INCENTIVE COMPENSATION. In addition to Basic Compensation, the
Executive shall be entitled to the following incentive compensation (the
"Incentive Compensation"):
(A) ANNUAL INCENTIVE COMPENSATION. The Executive shall be eligible for
an annual bonus of up to 100% of Salary as the Board of Directors or its
Compensation Committee may from time to time determine.
(B) LONG-TERM INCENTIVE COMPENSATION. The Board has approved the grant
of an option for the Executive to purchase 113,551 shares of the Employer's
Common Stock, $0.0001 par value (the "Option") under the WCI, Inc. 2006
Long-Term Incentive Plan, subject to the approval of the Employer's
stockholders. The Option is subject to the following terms and conditions:
(i) The Option shall have an exercise price equal to 100% of the
fair market value of the Common Stock on the date of grant, each as
determined in good faith by the Compensation Committee.
(ii) The Option shall become exercisable as to 5% of the number
of shares of Common Stock subject thereto upon the 1st day of each
calendar quarter following the Effective Date if the Executive remains
employed as of such date, provided that the Option shall become
immediately exercisable upon a Change in Control.
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(iii) The Option shall have a term of 10 years (the "Option
Term"); provided, however, that the Option may only be exercised after
termination of employment to the extent the Option was exercisable on
such date (after giving effect to any acceleration of exercisability
or forfeiture by reason of such termination of employment) as follows:
(A) in the event of termination of employment under either Section
6.1(a) (Termination By Death) or Section 6.1(b) (Termination Upon
Disability), at any time during the one-year period commencing on the
date of employment termination, but not after the expiration of the
Option Term; or (B) in the event of any other termination of
employment other than for cause under Section 6.1(c), at any time
during the three month period commencing on the date of employment
termination, but not after the expiration of the Option Term.
Notwithstanding the foregoing, the Option may be cancelled in the
Committee's sole discretion in connection with a merger, consolidation
or other significant corporate event, including but not limited to a
Change in Control, as provided under the WCI Steel, Inc. 2006
Long-Term Incentive Plan.
(iv) The Option shall not be transferable by the Executive during
his lifetime except to a permitted transferee as allowed under the WCI
Steel, Inc. 2006 Long-Term Incentive Plan.
(v) The Option or any part thereof shall be exercised by the
Executive, a permitted transferee or, if after death, a beneficiary
with written notice to the Employer stating the number of shares of
Common Stock with respect to which the Option is being exercised and
the form of payment of the exercise price of the Option and any
related withholding taxes. Payment may be made in any form of payment
allowed under the WCI Steel, Inc. 2006 Long-Term Incentive Plan. The
Employer shall deliver purchased shares of Common Stock promptly after
notice of exercise and payment.
(vi) The Option shall be subject to adjustment in the Committee's
sole discretion in connection with a merger, consolidation or other
significant corporate event, including but not limited to a Change in
Control, as provided under the WCI Steel, Inc. 2006 Long-Term
Incentive Plan.
The terms of the Option shall be set forth in and memorialized in a
separate option agreement subject to the WCI Steel, Inc. 2006 Long-Term
Incentive Plan.
If and to the extent determined by the Board of Directors from time to
time, the Executive shall be entitled to participate in other long term
incentive plans as may be established from time to time. The vesting amount
and timing of any payments to the Executive under such plan shall be
dictated by the terms of such plan, as amended from time to time.
Notwithstanding the foregoing, the Board of Directors or any duly authorized
committee thereof may make retroactive adjustments to and the Executive shall
reimburse to the Employer any cash or equity based incentive compensation paid
to the Executive under this Section 3 or otherwise
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where such compensation was predicated upon achieving certain financial results
that were substantially the subject of a restatement, and as a result of the
restatement it is determined that the Executive otherwise would not have been
paid such compensation, regardless of whether or not the restatement resulted
from the Executive's misconduct.
3.3 SUPPLEMENTAL BENEFITS. As consideration for entering into this
Agreement, the Employer shall also provide the Executive with the following
supplemental benefits:
(A) INCREASED BENEFIT UNDER DEFERRED COMPENSATION AGREEMENT. The
Executive shall be eligible to earn an increase in the amount payable under
his Deferred Compensation Agreement with the Employer dated April 26, 2006
(the "Deferred Compensation Agreement") of up to $200,000, thereby making
the maximum amount payable under the Deferred Compensation Agreement
$313,510. The Executive shall earn a vested benefit as to $8,333.33 of this
$200,000 increase on the first day of each month following the execution of
this Agreement that he is employed by the Employer up until June 1, 2008.
Any unvested portion of the $200,000 benefit shall be forfeited on
employment termination for any reason. Vested benefits earned under this
Section 3.3(a) shall be subject to all of the terms and conditions of the
Deferred Compensation Agreement, including but not limited to its
distribution provisions. Notwithstanding anything to the contrary in this
Section 3.3(a), any unpaid benefit under Section 3.3(a), whether vested or
unvested, shall be subject to immediate forfeiture in the event that the
Executive's employment is terminated for cause under Section 6.1(c).
(B) CASH BONUS. The Executive shall be eligible to earn a vested cash
bonus of up to $100,000. The Executive shall earn $4,166.66 of this
$100,000 cash bonus on the first day of each month following the execution
of this Agreement that he is employed by the Employer up until June 1,
2008. The Executive shall vest and receive payment of 8.33% of his earned
cash bonus on June 1, 2008 and the first day of each month thereafter until
May 1, 2009, assuming the Executive is then employed by the Employer. If
the Executive terminates employment with the Employer for any reason before
June 1, 2008, the Executive will not be entitled to receive payment of any
portion of the cash bonus unless the Executive's employment is terminated
by reason of death, disability, or by the Employer without cause, in which
case the Executive (or his representative or estate, as applicable) will be
entitled to receive the earned portion of his cash bonus in a single lump
sum payment within 30 days after employment termination. If the Executive
terminates employment with the Employer for any reason on or after June 1,
2008, the Executive shall retain any received monthly installments but
shall forfeit any remaining payments unless the Executive's employment is
terminated by reason of death, disability, or by the Employer without
cause, in which case the Executive (or his representative or estate, as
applicable) will be entitled to receive the remaining earned and unpaid
portion of his cash bonus in a single lump sum payment within 30 days after
employment termination. Notwithstanding anything to the contrary in this
Section 3.3(b), any unpaid benefit under Section 3.3(b), whether vested or
unvested, shall be subject to immediate forfeiture in the event that the
Executive's employment is terminated for cause under Section 6.1(c).
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ARTICLE IV
FACILITIES AND EXPENSES
The Employer shall furnish the Executive office space, equipment and
supplies, and such other facilities and personnel as the Employer reasonably
deems necessary or appropriate for the performance of the Executive's duties
under this Agreement. The Employer shall pay the Executive's dues in such
professional societies and organizations as the Board of Directors deems
appropriate. Upon presentation of appropriate documentation, the Executive shall
be reimbursed in accordance with the Employer's expense reimbursement policy for
all reasonable and necessary business and entertainment expenses incurred in
connection with the performance of the Executive's duties hereunder.
ARTICLE V
VACATIONS AND HOLIDAYS
The Executive shall be entitled to paid vacation each calendar year in
accordance with the vacation policies of the Employer in effect for its officers
from time to time. Vacation must be taken by the Executive at such time or times
as approved by the Employer's Chief Executive Officer. The Executive shall also
be entitled to the paid holidays and other paid leave set forth in the
Employer's policies. Vacation days and holidays during any calendar year that
are not used by the Executive during such calendar year may not be used in any
subsequent calendar year, and the Executive shall not be entitled to any payment
or compensation for vacation days or holidays that are not used by the Executive
during any calendar year.
ARTICLE VI
TERMINATION
6.1 EVENTS OF TERMINATION. The Employment Period, the Executive's Basic
Compensation and Incentive Compensation, and any and all other rights of the
Executive under this Agreement or otherwise as an employee of the Employer shall
terminate (except as otherwise provided in this Article VI) prior to May 1, 2011
upon the first to occur of the following:
(A) upon the death of the Executive;
(B) upon the disability of the Executive as defined in Section 6.2
immediately upon notice from either party to the other;
(C) for cause as defined in Section 6.3, as determined by the Board of
Directors, immediately upon notice from the Employer to the Executive, or
at such later time as such notice may specify;
(D) for good reason as defined in Section 6.4, (if not timely cured)
upon the thirtieth (30th) day following receipt of notice from the
Executive; or
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(E) for any other reason, upon notice from either party to the other.
6.2 DEFINITION OF DISABILITY. For purposes of Section 6.1, the Executive
shall be deemed to have a "disability" if, for physical or mental reasons, the
Executive is unable to perform the Executive's duties under this Agreement for
120 consecutive days, or 180 days during any twelve-month period, as determined
in accordance with this Section 6.2. The disability of the Executive shall be
determined by a medical doctor selected by written agreement of the Employer and
the Executive upon the request of either party by notice to the other. If the
Employer and the Executive cannot agree on the selection of a medical doctor,
each of them shall select a medical doctor and the two medical doctors shall
select a third medical doctor who shall determine whether the Executive has a
disability. The determination of the medical doctor selected under this Section
6.2 shall be binding on both parties. The Executive must submit to a reasonable
number of examinations by the medical doctor making the determination of
disability under this Section 6.2, and the Executive hereby authorizes the
disclosure and release to the Employer of such determination and all supporting
medical records. If the Executive is not legally competent, the Executive's
legal guardian or duly authorized attorney-in-fact shall act in the Executive's
stead, under this Section 6.2, for the purposes of selecting a medical doctor,
submitting the Executive to the examinations, and providing the authorization of
disclosure, required under this Section 6.2.
6.3 DEFINITION OF "FOR CAUSE". For purposes of Section 6.1, the phrase "for
cause" means any of the following:
(A) the Executive's material breach of this Agreement or a fiduciary
duty to the Employer if the Executive has been given a reasonable
opportunity to cure such failure (if curable), which reasonable opportunity
must be granted during the 30-day period preceding termination of this
Agreement;
(B) the Executive's failure to adhere to any code of conduct in effect
from time to time and applicable to officers and/or employees of the
Employer and any written policy in effect from time to time if the
Executive has been given a reasonable opportunity (i) to comply with such
code or policy or (ii) to cure such failure (if curable), which reasonable
opportunity must be granted during the 30-day period preceding termination
of this Agreement;
(C) the appropriation (or attempted appropriation) of a material
business opportunity of the Employer, including attempting to secure or
securing any personal profit in connection with any transaction entered
into on behalf of the Employer;
(D) the misappropriation (or attempted misappropriation) of any of the
Employer's funds or property;
(E) the conviction of, the indictment for (or its procedural
equivalent), or the entering of a guilty plea or plea of no contest (or its
procedural equivalent) with respect to a felony, the equivalent thereof, or
any other crime with respect to which imprisonment is a possible
punishment;
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(F) engaging in sexual harassment in violation of applicable federal,
state or local laws;
(G) controlled substance abuse, alcoholism or drug addiction which
interferes with or affects Executive's responsibilities to the Employer or
which reflects negatively upon the integrity or reputation of the Employer;
(H) the willful and continued failure by the Executive substantially
to perform his duties with the Employer (other than any such failure
resulting from incapacity due to mental or physical illness) after a demand
in writing for substantial performance is delivered by the Board of
Directors, which demand specifically identifies the manner in which the
Board of Directors believes that the Executive has not substantially
performed his duties; or
(I) willful malfeasance or grossly negligent conduct in connection
with providing services under this Agreement.
6.4 DEFINITION OF "FOR GOOD REASON". For purposes of Section 6.1, the
phrase "for good reason" prior to a Change in Control means the Employer's
material breach of this Agreement that is not cured in all material respects
within thirty (30) days after the Employer's receipt of timely written notice
thereof. In the event of a Change in Control, "good reason" shall also include
for two years thereafter (but in no event longer than the Employment Period) any
of the following events without the Executive's consent:
(A) the assignment of the Executive without his consent to a position,
responsibilities, or duties of a materially lesser status or degree of
responsibility than his position, responsibilities, or duties at the
Effective Date or the Employer's material reduction of Executive's
compensation, in the aggregate, as provided in Article III; or
(B) the relocation of the Employer's principal executive offices more
than 50 miles outside the Warren, Ohio metropolitan area, or
(C) the requirement that the Executive be based anywhere other than
the Employer's principal executive offices.
Notwithstanding the foregoing, any event of good reason shall be
automatically waived by the Executive if such event occurs but is not
objected to or claimed by the Executive pursuant to written notice that is
delivered to the Chairman of the Board of Directors within thirty (30) days
after the Executive's actual knowledge of such event.
6.5 TERMINATION PAY. Effective upon the termination of this Agreement, the
Employer will be obligated to pay the Executive (or, in the event of his death,
his designated beneficiary as defined below) only such compensation as is
provided in this Section 6.5, and in lieu of all other amounts. For purposes of
this Section 6.5, the Executive's designated beneficiary will be such individual
beneficiary or trust, located at such address, as the Executive may designate by
notice to the Employer from time to time or, if the Executive fails to give
notice to the Employer of such a beneficiary, the Executive's estate.
Notwithstanding the preceding sentence, the Employer shall have no duty, in any
circumstances, to attempt to open an
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estate on behalf of the Executive, to determine whether any beneficiary
designated by the Executive is alive or to ascertain the address of any such
beneficiary, to determine the existence of any trust, to determine whether any
person or entity purporting to act as the Executive's personal representative
(or the trustee of a trust established by the Executive) is duly authorized to
act in that capacity, or to locate or attempt to locate any beneficiary,
personal representative, or trustee.
(A) TERMINATION FOR GOOD REASON OR WITHOUT CAUSE. If the Executive's
employment hereunder is terminated by the Employer other than for cause
(and other than a termination due to disability or death) or by the
Executive for good reason, the Employer shall pay or provide to or on
behalf of the Executive the following:
(i) the Executive's Salary for the remainder, if any, of the
calendar month in which such termination is effective and (A) in the
case of such an employment termination on or before the second (2nd)
anniversary of the Effective Date, twenty-four (24) consecutive
calendar months, or (B) in the case of such an employment termination
after the second (2nd) anniversary of the Effective Date, eighteen
(18) consecutive calendar months thereafter, but in no event shall the
period described in clause (A) or (B) above extend beyond the
Executive's death (the "severance period"); provided however, that if
the Executive obtains other employment prior to the end of the
severance period, he must promptly give notice thereof to the
Employer, and continued Salary payments under this Agreement for any
period after the Executive obtains other employment will be reduced by
the amount of the cash compensation received and to be received by the
Executive from the Executive's other employment for services performed
during such period.
(ii) the portion of the Executive's Annual Incentive Compensation
under Section 3.2(a) that otherwise would have been payable based on
the then current actual performance, as reasonably determined by the
Board of Directors or a duly authorized committee thereof, multiplied
by a fraction, (A) the numerator of which is the number of days from
January 1st of the calendar year in which such termination occurs
until the date of the Executive's employment termination, and (B) the
denominator of which is 365.
(iii) subject to the Executive's continued co-payment of
premiums, continued participation during the severance period in all
medical plans that cover the Executive (and his eligible dependents)
upon the same terms and conditions (except for the requirement of the
Executive's continued employment) in effect for active employees of
the Employer during the severance period. If the Executive obtains
other employment that offers substantially similar or improved
benefits, as to any particular medical plan, continuation of coverage
by the Employer under this Section 6.5(a)(iii) shall immediately
cease. The continuation of health benefits under this subsection shall
reduce and count against the Executive's rights under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended.
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Notwithstanding any other provision in this Agreement or the terms of any
severance plan or policy maintained by the Employer or its Affiliates to
the contrary, if the Employer makes payments and provides benefits under
Section 6.5(a), the Executive shall not be entitled to receive any other
payments or benefits under any other severance or similar plan maintained
by the Employer or its Affiliates.
(B) CONDITIONS FOR SEVERANCE UNDER SECTION 6.5(A). Any payments or
benefits made or provided under Section 6.5 are subject to the Executive's:
(i) compliance with the provisions of Articles VII and VIII hereof; (ii)
delivery to the Employer of an executed General Release, which shall be
substantially in the form attached hereto as an Appendix (with such changes
therein or additions thereto as needed under then applicable law to give
effect to its intent and purpose) within twenty-one (21) days of
presentation thereof by the Employer to the Executive; and (iii) delivery
to the Employer of a resignation from all offices, directorships and
fiduciary positions with the Employer, its affiliates and employee benefit
plans. Notwithstanding the due date of any post-employment payments, any
amounts due following a termination under this Agreement shall not be due
until after the expiration of any revocation period applicable to the
General Release without the Executive having revoked such General Release,
and any such amounts shall be paid to the Executive within thirty (30) days
of the expiration of such revocation period without the occurrence of a
revocation by the Executive or such later date as may be required to comply
with Section 409A of the Code.
(C) TERMINATION BY THE EMPLOYER FOR CAUSE OR BY THE EXECUTIVE WITHOUT
GOOD REASON. If the Employer terminates this Agreement for cause, or if the
Executive terminates this Agreement for any reason other than for good
reason, Executive's disability, as determined under Section 6.2, or the
Executive's death, the Executive shall be entitled to receive his Salary
only through the date such termination is effective but shall not be
entitled to any Incentive Compensation for the Fiscal Year during which
such termination occurs or any subsequent Fiscal Year or any other
benefits.
(D) TERMINATION UPON DISABILITY. If this Agreement is terminated by
either party as a result of the Executive's disability, as determined under
Section 6.2, the Employer shall pay the Executive his Salary through the
remainder of the calendar month during which such termination is effective
and for the lesser of (i) six consecutive months thereafter, or (ii) the
period until disability insurance benefits commence under any disability
insurance coverage that may be furnished by the Employer to the Executive.
In addition, the Employer shall pay the Executive's Annual Incentive
Compensation under Section 3.2(a) that otherwise would have been payable
based on performance to date of employment termination, as reasonably
determined by the Board of Directors or a duly authorized committee thereof
multiplied by a fraction, (A) the numerator of which is the number of days
from January 1st of the calendar year in which such termination occurs
until the date of the Executive's employment termination, and (B) the
denominator of which is 365.
(E) TERMINATION BY DEATH. If this Agreement is terminated because of
the Executive's death, the Executive will be entitled to receive his Salary
through the end of the calendar month in which his death occurs and the
Executive's Annual Incentive
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Compensation under Section 3.2(a) that otherwise would have been payable
based on the then current actual performance, as reasonably determined by
the Board of Directors or a duly authorized committee thereof multiplied by
a fraction, (A) the numerator of which is the number of days elapsed from
January 1st of the year in which his death occurs through the Executive's
death, and (B) the denominator of which is 365.
(F) BENEFITS. Except as provided in Section 6.5(a) and 6.5(b) and
except to the extent the continuing provision of any such Benefits is
mandated by applicable law or such payments are otherwise expressly
specified to be payable hereunder, the Executive's accrual of, or
participation in plans providing for, the Benefits will cease at the
effective date of the Executive's employment termination and the Executive
will be entitled to receive accrued Benefits under such plans only as
provided pursuant to the terms of such plans. The Executive will not
receive, as part of his termination pay pursuant to this Article VI, any
payment or other compensation for any vacation, holiday, personal days,
sick leave, or other leave unused on the date the notice of termination is
given under this Agreement.
ARTICLE VII
NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 ACKNOWLEDGEMENTS BY THE EXECUTIVE. The Executive acknowledges that (a)
during the Employment Period and as a part of his employment, the Executive will
be afforded access to Confidential Information; (b) public disclosure of such
Confidential Information could have an adverse effect on the Employer and its
business; (c) because the Executive possesses substantial technical expertise
and skill with respect to the Employer's business, the Employer desires to
obtain exclusive ownership of each Employee Invention, and the Employer will be
at a substantial competitive disadvantage if it fails to acquire exclusive
ownership of each Employee Invention; and (d) the provisions of this Article VII
are reasonable and necessary to prevent the improper use or disclosure of
Confidential Information and to provide the Employer with exclusive ownership of
all Employee Inventions.
7.2 AGREEMENTS OF THE EXECUTIVE. In consideration of the compensation and
benefits to be paid or provided to the Executive by the Employer under this
Agreement, the Executive covenants as follows:
(A) CONFIDENTIALITY.
(i) During and following the Employment Period, the Executive
shall hold in confidence the Confidential Information and shall not
disclose it to any person except with the specific prior written
consent of the Employer or except as otherwise expressly permitted by
the terms of this Agreement. The Executive further agrees not to use
the Confidential Information either for any reason or purpose other
than in connection with his employment by the Employer or in any other
way, whether for personal profit or gain, detrimental to the Employer
or otherwise.
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(ii) Any trade secrets of the Employer shall be entitled to all
of the protections and benefits under any applicable law. If any
information that the Employer deems to be a trade secret is found by a
court of competent jurisdiction not to be a trade secret for purposes
of this Agreement, such information shall, nevertheless, be considered
Confidential Information for purposes of this Agreement. The Executive
hereby waives any requirement that the Employer submit proof of the
economic value of any trade secret or post a bond or other security.
(iii) None of the foregoing obligations and restrictions applies
to any part of the Confidential Information that the Executive
demonstrates was or became generally available to the public other
than as a result of a disclosure by or at the direction of the
Executive.
(iv) The Executive shall not remove from the Employer's premises
(except to the extent such removal is for purposes of the performance
of the Executive's duties at home or while traveling, or except as
otherwise specifically authorized by the Employer) any document,
record, notebook, plan, model, component, device, or computer software
or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). The Executive recognizes
that, as between the Employer and the Executive, all of the
Proprietary Items, whether or not developed by the Executive, are the
Employer's exclusive property. Upon termination of this Agreement by
either party, or upon the request of the Employer during the
Employment Period, the Executive will return to the Employer all of
the Proprietary Items in the Executive's possession or subject to the
Executive's control, and the Executive shall not retain any copies,
abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
(B) EMPLOYEE INVENTIONS. Each Employee Invention shall belong
exclusively to the Employer. The Executive acknowledges that all of the
Executive's writings, works of authorship and other Employee Inventions are
works made for hire and the property of the Employer, including any
copyrights, patents, semiconductor mask protection or other intellectual
property rights pertaining thereto. If it is determined that any such works
are not works made for hire, the Executive hereby assigns to the Employer
all of the Executive's rights, titles, and interests, including all rights
of copyright, patent, semiconductor mask protection and other intellectual
property rights to or in such Employee Inventions. The Executive covenants
that he shall promptly:
(i) disclose to the Employer in writing any Employee Invention;
(ii) assign to the Employer or to a party designated by the
Employer, at the Employer's request and without additional
compensation, all of the Executive's rights to the Employee Invention
for the United States and all foreign jurisdictions;
(iii) execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may request in order
to apply
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for and obtain patents or other registrations with respect to any
Employee Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance in support of
the Employer's rights to any Employee Invention.
7.3 CONFIDENTIALITY DESPITE DISPUTES OR CONTROVERSIES. The Executive
recognizes that should a dispute or controversy arising from or relating to this
Agreement be submitted for adjudication to any court, arbitration panel, or
other third party, the preservation of the secrecy of Confidential Information
may be jeopardized. All pleadings, documents, testimony, and records relating to
any such adjudication shall be maintained in secrecy and shall be available for
inspection by the Employer, the Executive, and their respective attorneys and
experts, who shall agree, in advance and in writing, to receive and maintain all
such information in secrecy, except as may be limited, by them in writing.
ARTICLE VIII
NON-COMPETITION AND NON-INTERFERENCE
8.1 ACKNOWLEDGEMENTS BY THE EXECUTIVE. The Executive acknowledges that: (a)
the services to be performed by him under this Agreement are of a special,
unique, unusual, extraordinary and intellectual character; (b) the Employer
competes with other businesses that are or could be located in any part of the
United States; and (c) the provisions of this Article VIII are reasonable and
necessary to protect the Employer's business.
8.2 COVENANTS OF THE EXECUTIVE. In consideration of the acknowledgements by
the Executive, and in consideration of the compensation and benefits to be paid
or provided to the Executive by the Employer, the Executive covenants that he
shall not, directly or indirectly:
(A) during the Executive's employment hereunder and for the
Post-Employment Period, engage in the development, production, marketing,
or sale of products that compete (or, upon commercialization, would
compete) with products of the Employer or its Affiliates being developed,
marketed or sold as of the date of such termination whether such engagement
shall be as an officer, director, owner, employee, partner, consultant,
advisor or any other capacity. This Section 8.2(a) shall not prevent the
Executive from owning not more than one percent (1%) of the total shares of
all classes of stock outstanding of any publicly held entity engaged in
such business;
(B) during the Executive's employment hereunder and during the
Post-Employment Period, individually or on behalf of any other person,
firm, corporation or other entity, knowingly solicit, aid or induce: (i)
any employee, director or other person providing services to the Employer
or any of its Affiliates to leave such employment or otherwise cease
providing services in order to accept employment with or otherwise render
services to or with any other person, firm, corporation or other entity
unaffiliated with the Employer or its Affiliates, or knowingly take any
action to materially assist or
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aid any other person, firm, corporation or other entity in identifying or
hiring any such person (provided, that the foregoing shall not be violated
by general advertising not targeted at the Employer's employees nor by
serving as a reference for a person with regard to an entity with which the
Executive is not affiliated) or (ii) any customer of the Employer or any of
its Affiliates to purchase goods or services then sold by the Employer or
any of its Affiliates from another person, firm, corporation or other
entity or assist or aid any other persons or entity in identifying or
soliciting any such customer;
(C) whether for the Executive's own account or the account of any
other person, at any time during the Employment Period and the
Post-Employment Period interfere with the relationship of the Employer or
any Affiliate with any person, including any person who at any time during
the Employment Period was an employee, contractor, supplier or customer of
the Employer; or
(D) make any statements at any time that disparage the Employer, its
Affiliates or their respective employees, officers, directors, products or
services.
For purposes of this Section 8.2, the term "Post-Employment Period" means
the eighteen month period beginning on the date of termination of the
Executive's employment with the Employer.
If any covenant in this Section 8.2 is held to be unreasonable, arbitrary
or against public policy, such covenant shall be considered to be divisible with
respect to scope, time, and geographic area, and such lesser scope, time, or
geographic area, or all of them as a court of competent jurisdiction may
determine to be reasonable, not arbitrary, and not against public policy, shall
be effective, binding, and enforceable against the Executive.
The period of time applicable to any covenant in this Section 8.2 will be
extended by the duration of any violation by the Executive of such covenant.
The Executive shall, while the covenant under this Section 8.2 is in
effect, give notice to the Employer, within ten days after accepting any other
employment, of the identify of the Executive's employer. The Employer may notify
such employer that the Executive is bound by this Agreement and, at the
Employer's election, furnish such employer with a copy of this Agreement or
relevant portions thereof.
ARTICLE IX
EXCISE TAX
9.1 BENEFIT LIMIT. Notwithstanding anything in this Agreement to the
contrary, if any payment or benefit (including cash-based severance benefits,
accelerated stock option vesting or continued health care coverage) received or
to be received by the Executive pursuant to this Agreement or any other
agreement, plan or program (collectively the "Payments") would constitute a
"parachute payment," then the aggregate "present value" of those Payments shall
be limited to 3 times the Executive's "base amount" less one dollar (the
"Benefits Limit"). For purposes of applying the Benefit Limit, the definitions
(for such terms as "parachute payment,"
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"xxxx xxxxxx," "present value") and rules set forth in the Treasury Regulations
promulgated under Section 280G of the Code shall apply.
9.2 INDEPENDENT ACCOUNTANT. In the event there is any disagreement between
Executive and the Employer as to whether one or more Payments to which Executive
becomes entitled to under this Agreement or otherwise constitute a "parachute
payment," such dispute will be submitted for resolution to a nationally
recognized firm of certified public accountants (the "Independent Accountant")
selected by the Board of Directors in existence immediately prior to the Change
in Control. The resolution reached by the Independent Accountant will be final
and controlling. For purposes of making the determinations required by this
Section 9.2, the Independent Accountant may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Sections 280G and 4999 of
the Code, provided that the Independent Accountant's determinations must be made
with substantial authority (within the meaning of Section 6662 of the Code). All
expenses incurred in connection with the retention of the Independent Accountant
shall be borne by the Employer.
9.3 REDUCTION FOR BENEFIT LIMIT. No payments will be made to the Executive
under this Agreement until the status of any payments in dispute under this
Section has been resolved. Once any disputes have been resolved, then to the
extent the aggregate present value of any amounts contingent on a Change in
Control exceed the Benefit Limit, then the Executive's cash based Severance
Benefits will first be reduced as selected by the Executive, and then, if
necessary, the Executive's equity compensation (based on their parachute value
under Section 280G of the Code) shall be reduced to the extent necessary to
assure that the Benefit Limit is not exceeded.
ARTICLE X
SECTION 409A
If payment or provision of any amount or other benefit that is "deferred
compensation" subject to Section 409A of the Code at the time otherwise
specified in this Agreement would subject such amount or benefit to additional
tax pursuant to Section 409A(a)(1)(B) of the Code, and if payment or provision
thereof at a later date would avoid any such additional tax, then the payment or
provision thereof shall be postponed to the earliest date on which such amount
or benefit can be paid or provided without incurring any such additional tax. If
this Article X requires a deferral of any payment, such payment shall be
accumulated and paid in a single lump sum on such earliest date together with
interest for the period of delay, compounded annually, equal to the prime rate
(as published in The Wall Street Journal) in effect as of the date the payment
should otherwise have been provided. If any payment or benefit permitted or
required under this Agreement is reasonably determined by either party to be
subject for any reason to a material risk of additional tax pursuant to Section
409A(a)(1)(B) of the Code, then the parties shall promptly agree in good faith
on appropriate provisions to avoid such risk without materially changing the
economic value of this Agreement to either party.
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ARTICLE XI
GENERAL PROVISIONS
11.1 INJUNCTIVE RELIEF, JURISDICTION ADDITIONAL REMEDY. The Executive
acknowledges that the injury that would be suffered by the Employer as a result
of a breach of the provisions of this Agreement (including any provision of
Article VII and VIII) would be irreparable and that an award of monetary damages
to the Employer for such a breach would be an inadequate remedy. Consequently,
the Employer shall have the right, in addition to any other rights it may have,
to obtain injunctive relief to restrain any breach or threatened breach or
otherwise to specifically enforce any provision of this Agreement, and the
Employer shall not be obligated to post bond or other security in seeking such
relief. Without limiting the Employer's rights under this Article XI or any
other remedies of the Employer, if the Executive breaches any of the provisions
of Articles VII and VIII, the Employer shall have the right to cease making any
payments otherwise due to the Executive under this Agreement. Any action or
proceeding seeking to enforce any provision of, or based on any right arising
out of, Articles VII or VIII of this Agreement shall be brought in the courts of
the State of Ohio, County of Trumbull, or, if it has or can acquire
jurisdiction, in the United States District Court for the Northern District of
Ohio, and each of the parties consents to the jurisdiction of such courts (and
of the appropriate appellate courts) in any such action or proceeding and waives
any objection to venue laid therein. Process in any action or proceeding
referred to in the preceding sentence may be served on either party anywhere in
the world.
11.2 COVENANTS OF ARTICLE VII AND VIII ARE ESSENTIAL AND INDEPENDENT
COVENANTS.
The covenants by the Executive in Articles VII and VIII are essential
elements of this Agreement, and without the Executive's agreement to comply with
such covenants, the Employer would not have entered into this Agreement or
employed or continued the employment of the Executive. The Employer and the
Executive have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Employer.
The Executive's covenants in Articles VII and VIII are independent
covenants and the existence of any claim by the Executive against the Employer
under this Agreement or otherwise shall not excuse the Executive's breach of any
covenant in Article VII or Article VIII.
If the Executive's employment hereunder expires or is terminated, this
Agreement shall continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Articles VII and
VIII.
11.3 INDEMNIFICATION.
The Employer shall maintain directors and officers' liability insurance to
protect the Executive from claims with respect to the period of time of the
Executive's employment with the Employer and shall provide Executive with
post-employment coverage relating to the Executive employment with the Employer
until all applicable statutes of limitations for claims against the Executive
have expired.
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The Employer shall indemnify the Executive (to the full extent allowed
under law) in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative in nature, by reason of
the fact that the Executive is or was an employee of the Employer, against
expenses (including attorney's fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by the Executive in connection with
such action, suit, or proceeding on the same terms and conditions as provided to
the Board of Directors.
11.4 ARBITRATION AND EQUITABLE RELIEF.
To the extent permitted by applicable law, Executive agrees that any
dispute or controversy arising out of, relating to, or in connection with this
Agreement, or the interpretation, validity, construction, performance, breach,
or termination thereof shall be settled by arbitration to be held before a
single arbitrator in such location as agreed by both the Executive and the
Employer, in accordance with the National Rules for the Resolution of Employment
Disputes then in effect of the American Arbitration Association (the "Rules").
The arbitrator may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitrator shall be final, conclusive and
binding on the parties to the arbitration. Judgment may be entered on the
arbitrator's decision in any court having jurisdiction. The fees and expenses of
the arbitrators, and any American Arbitration Association fees, shall be paid by
the Employer.
The arbitrator shall apply Ohio law and any applicable Federal law to the
merits of any dispute or claim, without reference to rules of conflict of law.
The arbitration proceeding shall be governed by Federal arbitration law and by
the Rules, without reference to state arbitration law. Executive hereby
expressly consents to the personal jurisdiction of the state and Federal courts
located in Ohio for any action or proceeding arising from or relating to this
Agreement and/or relation to any arbitration in which the parties are
participants.
EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE AGREES TO
SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS
AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH,
OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE
CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO THE
RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EXECUTIVE
RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF
CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF ANY GOOD FAITH AND
FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR
INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND
DEFAMATION.
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(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL, STATE OR MUNICIPAL
STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT, THE
AGE DISCRIMINATION IN EMPLOYMENT ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE
AMERICANS WITH DISABILITIES ACT, AND THE FAIR LABOR STANDARDS ACT.
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS
RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
Notwithstanding any provision hereinto the contrary, this Section 11.4
shall not apply to any dispute or controversy arising under Articles VII or VIII
or the interpretation, validity, construction, performance, breach or
termination thereof.
11.5 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE. The Executive
represents and warrants to the Employer that the execution and delivery by the
Executive of this Agreement do not, and the performance by the Executive of the
Executive's obligations hereunder will not, with or without the giving of notice
or the passage of time, or both: (a) violate any judgment, writ, injunction, or
order of any court, arbitrator, or governmental agency applicable to the
Executive; or (b) conflict with, result in the breach of any provisions of or
the termination of, or constitute a default under, any agreement to which the
Executive is a party or by which the Executive is or may be bound.
11.6 OBLIGATIONS CONTINGENT ON PERFORMANCE. The obligations of the Employer
hereunder, including its obligation to pay the compensation provided for herein,
are contingent upon the Executive's performance of the Executive's obligations
hereunder.
11.7 WAIVER. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement shall
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege shall preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement.
11.8 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED. This Agreement shall
inure to the benefit of, and shall be binding upon, the parties hereto and their
respective successors, assigns, heirs and legal representatives, including any
entity with which the Employer may merge or consolidate or to which all or
substantially all of its assets may be transferred. The duties and covenants of
the Executive under this Agreement, being personal, may not be delegated.
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11.9 NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Employer: WCI Steel, Inc.
0000 Xxxx Xxx XX
Xxxxxx, Xxxx 00000-0000
Attention: President
With a copy to: XxXxxxxxx Will & Xxxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. X'Xxxxx, Esq.
If to the Executive: The Executive's address on file with the
Employer's human resources department.
11.10 ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended orally, but only by an agreement in writing signed by the parties
hereto.
11.11 GOVERNING LAW. This Agreement will be governed by the laws of the
State of Ohio without regard to conflicts of laws principles.
11.12 SECTION HEADINGS, CONSTRUCTION. The headings of Articles and Sections
in this Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Article" or "Articles" or to
"Section" or "Sections" refer to the corresponding Article(s) or Section(s) of
this Agreement unless otherwise specified. All words used in this Agreement will
be construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word "including" does not limit the preceding
words or terms.
11.13 SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement shall remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree shall remain in
full force and effect to the extent not held invalid or unenforceable.
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11.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original copy of this
Agreement and all of which, when taken together, shall be deemed to constitute
one and the same agreement.
11.15 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL IN
ANY LITIGATION WITH RESPECT TO THIS AGREEMENT.
11.16 TAX WITHHOLDING. The Employer may withhold from any and all amounts
payable under this Agreement such federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation.
11.17 AGREEMENT OF THE PARTIES. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto. Neither Executive nor the Employer shall be entitled to any presumption
in connection with any determination made hereunder in connection with any
arbitration, judicial or administrative proceeding relating to or arising under
this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date above first written above.
EMPLOYER: EXECUTIVE:
WCI Steel, Inc.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxx
--------------------------------- ----------------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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APPENDIX
FORM OF RELEASE
AGREEMENT AND GENERAL RELEASE
WCI Steel, Inc., its affiliates, subsidiaries, divisions, successors and
assigns in such capacity, and the current, future and former employees,
officers, directors, trustees and agents thereof (collectively referred to
throughout this Agreement as "EMPLOYER"), and ____________ ("EXECUTIVE"), the
Executive's heirs, executors, administrators, successors and assigns
(collectively referred to throughout this Agreement as "EMPLOYEE") agree:
1. LAST DAY OF EMPLOYMENT. Executive's last day of employment with Employer
is DATE. In addition, effective as of DATE, Executive resigns from the
Executive's position as ___________________ and will not be eligible for any
benefits or compensation after DATE, other than as specifically provided in
Article VI of the Executive Employment Agreement between Employer and Executive
dated as of __________ __, 2006 (the "EMPLOYMENT AGREEMENT"). Executive further
acknowledges and agrees that, after DATE, the Executive will not represent the
Executive as being a director, employee, officer, trustee, agent or
representative of Employer for any purpose. In addition, effective as of DATE,
Executive resigns from all offices, directorships, trusteeships, committee
memberships and fiduciary capacities held with, or on behalf of, Employer or any
benefit plans of Employer. These resignations will become irrevocable as set
forth in Section 3 below.
2. CONSIDERATION. The parties acknowledge that this Agreement and General
Release is being executed in accordance with Section 6.5(b) of the Employment
Agreement.
3. REVOCATION. Executive may revoke this Agreement and General Release for
a period of fifteen (15) calendar days following the day Executive executes this
Agreement and General Release. Any revocation within this period must be
submitted, in writing, to Employer and state, "I hereby revoke my acceptance of
our Agreement and General Release." The revocation must be personally delivered
to Employer's _______________, or his/her designee, or mailed to Employer,
_________________, and postmarked within fifteen (15) calendar days of execution
of this Agreement and General Release. This Agreement and General Release shall
not become effective or enforceable until the revocation period has expired. If
the last day of the revocation period is a Saturday, Sunday, or legal holiday in
_____________, then the revocation period shall not expire until the next
following day which is not a Saturday, Sunday, or legal holiday.
4. GENERAL RELEASE OF CLAIM. Employee knowingly and voluntarily releases
and forever discharges Employer from any and all claims, causes of action,
demands, fees and liabilities of any kind whatsoever, whether known and unknown,
against Employer, Employee has, has ever had or may have as of the date of
execution of this Agreement and General Release, including, but not limited to,
any alleged violation of:
- The National Labor Relations Act, as amended;
- Title VII of the Civil Rights Act of 1964, as amended;
Appendix to Executive
Employment Agreement
- The Civil Rights Act of 1991;
- Sections 1981 through 1988 of Title 42 of the United States Code, as
amended;
- The Employee Retirement Income Security Act of 1974, as amended;
- The Immigration Reform and Control Act, as amended;
- The Americans with Disabilities Act of 1990, as amended;
- The Age Discrimination in Employment Act of 1967, as amended;
- The Older Workers Benefit Protection Act of 1990;
- The Worker Adjustment and Retraining Notification Act, as amended;
- The Occupational Safety and Health Act, as amended;
- The Family and Medical Leave Act of 1993;
- Any wage payment and collection, equal pay and other similar laws,
acts and statutes of the State of Ohio;
- Any other federal, state or local civil or human rights law or any
other local, state or federal law, regulation or ordinance;
- Any public policy, contract, tort, or common law; or
- Any allegation for costs, fees, or other expenses including attorneys'
fees incurred in these matters.
Notwithstanding anything herein to the contrary, the sole matters to which
the Agreement and General Release do not apply are: (i) Employee's rights under
any tax-qualified pension or claims for accrued vested benefits under any other
employee benefit plan, policy or arrangement maintained by Employer or under
COBRA; (ii) Employee's rights under the provisions of the Employment Agreement
which are intended to survive termination of employment; or (iii) Employee's
rights as a stockholder.
5. NO CLAIMS PERMITTED. Employee waives Executive's right to file any
charge or complaint against Employer arising out of Executive's employment with
or separation from Employer before any federal, state or local court or any
state or local administrative agency, except where such waivers are prohibited
by law. This Agreement, however, does not prevent Employee from filing a charge
with the Equal Employment Opportunity Commission, any other federal government
agency, and/or any government agency concerning claims of discrimination,
although Employee waives the Executive's right to recover any damages or other
relief in any claim or suit brought by or through the Equal Employment
Opportunity Commission or any other state or local agency on behalf of Employee
under the Age Discrimination in Employment Act, Title VII of the Civil Rights
Act of 1964 as amended, the Americans with Disabilities Act,
Appendix to Executive
Employment Agreement
or any other federal or state discrimination law, except where such waivers are
prohibited by law.
6. AFFIRMATIONS. Employee affirms Executive has not filed, has not caused
to be filed, and is not presently a party to, any claim, complaint, or action
against Employer in any forum or form. Employee further affirms that the
Executive has been paid and/or has received all compensation, wages, bonuses,
commissions, and/or benefits to which Executive may be entitled and no other
compensation, wages, bonuses, commissions and/or benefits are due to Executive,
except as provided in Section 6 of the Employment Agreement. Employee also
affirms Executive has no known workplace injuries.
7. COOPERATION; RETURN OF PROPERTY. Employee agrees to reasonably cooperate
with Employer and its counsel in connection with any investigation,
administrative proceeding or litigation relating to any matter that occurred
during Executive's employment in which Executive was involved or of which
Executive has knowledge. Employer will reimburse the Employee for any reasonable
out-of-pocket travel, delivery or similar expenses incurred in providing such
service to Employer. Employee represents that Executive has returned to Employer
all property belonging to Employer, including but not limited to any leased
vehicle, laptop, cell phone, keys, access cards, phone cards and credit cards,
provided that Executive may retain, and Employer shall cooperate in
transferring, Executive's cell phone number and any home communication and
security equipment as well as Executive's rolodex and other address books.
8. GOVERNING LAW AND INTERPRETATION. This Agreement and General Release
shall be governed and conformed in accordance with the laws of the State of Ohio
without regard to its conflict of laws provisions. In the event Employee or
Employer breaches any provision of this Agreement and General Release, Employee
and Employer affirm either may institute an action to specifically enforce any
term or terms of this Agreement and General Release. Should any provision of
this Agreement and General Release be declared illegal or unenforceable by any
court of competent jurisdiction and should the provision be incapable of being
modified to be enforceable, such provision shall immediately become null and
void, leaving the remainder of this Agreement and General Release in full force
and effect. Nothing herein, however, shall operate to void or nullify any
general release language contained in the Agreement and General Release.
9. NONADMISSION OF WRONGDOING. Employee agrees neither this Agreement and
General Release nor the furnishing of the consideration for this Release shall
be deemed or construed at any time for any purpose as an admission by Employer
of any liability or unlawful conduct of any kind.
10. AMENDMENT. This Agreement and General Release may not be modified,
altered or changed except upon express written consent of both parties wherein
specific reference is made to this Agreement and General Release.
11. ENTIRE AGREEMENT. This Agreement and General Release sets forth the
entire agreement between the parties hereto and fully supersedes any prior
agreements or understandings between the parties; provided, however, that
notwithstanding anything in this Agreement and General Release, the provisions
in the Employment Agreement which are
Appendix to Executive
Employment Agreement
intended to survive termination of the Employment Agreement shall survive and
continue in full force and effect. Employee acknowledges that the Executive has
not relied on any representations, promises, or agreements of any kind made to
Executive in connection with Executive's decision to accept this Agreement and
General Release.
EMPLOYEE HAS BEEN ADVISED THAT EXECUTIVE HAS UP TO TWENTY-ONE (21)
CALENDAR DAYS TO REVIEW THIS AGREEMENT AND GENERAL RELEASE AND HAS BEEN ADVISED
IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT AND
GENERAL RELEASE.
EMPLOYEE AGREES ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS
AGREEMENT AND GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE
ORIGINAL TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO
FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE THE SUMS AND BENEFITS SET
FORTH IN THE EMPLOYMENT AGREEMENT, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE
CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO
WAIVE, SETTLE AND RELEASE ALL CLAIMS EXECUTIVE HAS OR MIGHT HAVE AGAINST
EMPLOYER.
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily
executed this Agreement and General Release as of the date set forth below:
WCI Steel, Inc.,
a Delaware corporation
By:
--------------------------------- ----------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title:
------------------------------
Date: Date:
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Appendix to Executive
Employment Agreement
