Exhibit 10.12(c)
WHEELING-PITTSBURGH STEEL CORPORATION
AMENDED AND RESTATED RETENTION AGREEMENT
This Agreement, effective as of February 15, 2006, is an amendment and
restatement of, and replaces in its entirety, the Post-Bankruptcy Retention
Agreement entered into effective as of August 1, 2003 (the "Effective Date"),
and the amendment and restatement of the Post-Bankruptcy Retention Agreement,
entered into effective as of February 16, 2005, by and between the Xxxxxx X.
Xxxxxx, currently residing at 000 X. Xxxxx Xxxxxx Xxx. X, Xx. Xxxxxxxxxxx, 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.
Executive shall serve as the Senior Vice President, Human Resources and Public
Relations 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") or the
Company's President and Chief Executive Officer 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 President and Chief Executive Officer, and make passive
investments, which do not interfere with the Executive's day-to-day acquittal of
his responsibilities to the Company.
3. TERM.
(a) GENERAL. This Agreement shall have effect as of the Effective Date, and
shall remain in effect until August 31, 2006 (the "Expiration Date") or, if
earlier, the
date this Agreement and the Executive's employment hereunder shall have been
terminated in accordance with the provisions of Section 5. 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."
(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 and
the provisions of Section 5(a)(vi)(B) and the other provisions referenced
therein shall extend beyond the Expiration Date to the extent described therein.
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 $165,000, provided, such salary rate
shall be reduced by 15% through May 1, 2004, 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, and shall also be
entitled to receive a bonus of one-half of his then Salary at the "Performance
Acceptance Date" with respect to the Company's electric arc furnace as that term
is defined under the Company's Term Loan Agreement as of the Effective Date. The
Board may also award other bonuses from time to time in its discretion.
(c) LONG-TERM INCENTIVES. As of the Effective Date, the Executive shall be
granted 42,857 shares of Restricted Stock under and in accordance with the terms
of the Parent's 2003 Management Restricted Stock Plan.
(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, 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:
2
(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 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.
(vii) An annual contribution for each calendar year (or pro rata
portion thereof in the event of termination), to be made no later than March 15
of the following calendar year, of not less than $25,000 to a program of
insurance or similar arrangement intended to provide supplemental pension and
death benefits to or for the benefit of the Executive.
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 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.
3
(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 tax imposed by Section 4999
of the Code (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 Total Payments. 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.
5. TERMINATION OF EMPLOYMENT AND EFFECTS THEREOF.
(a) TERMINATION. This Agreement and the Executive's employment under this
Agreement may be terminated prior to its expiration under Section 3 in the
following circumstances. On any termination (including expiration of the term
hereof), the Executive (or in the event of his death, his estate) shall be
entitled to his then Salary
4
and supplemental pension contribution (as described in Section 4(d)(vii)) earned
or accrued but unpaid through the end of the month in which termination
(including death) occurred but the Company shall have only such further
obligations to the Executive, if any, as are specified below under the
applicable termination provisions.
(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 subparagraphs (A) and (C) below and the continuation of health
insurance benefits described in subparagraph (B) below, subject to (D) below:
(A) Salary Payment. Under this subparagraph, the Executive shall be
entitled to receive one-time payment in an amount equal to one (1) times
his then Salary payable in a single lump sum within thirty (30) days of
termination.
(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 (or for
twelve (12) months, if less), 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.
(C) Pro Rata Bonus. The Executive shall be entitled to a pro rata
bonus in an amount determined under the terms of the applicable Company
5
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.
(D) Effect of Change of Control. In the event the Company terminates
the Executive's employment other than for Cause within one (1) year
following a Change of Control, the Executive shall be entitled to receive
an amount equal to two (2) times his annual Salary at the highest
annualized rate in effect during the one year immediately preceding the
date of the Change of Control, payable in a single lump sum within thirty
(30) days of termination, in lieu of the amount described in subparagraph
(A) above, COBRA Continuation under subparagraph (B) above (but in this
event, for a maximum of eighteen (18) months) and a pro rata bonus as
determined under subparagraph (C) above. Notwithstanding the above, if, as
of the date of the change of control, the $25,000 annual payment referred
to in Section 4(d)(vii) has not been substituted with a sixteen percent
(16%) increase in base salary ( which increase would be included in the
calculation of Salary for purposes of the above payment upon change of
control), , then for purposes of calculating the Executive's payment under
this subparagraph (D), the Executive's Salary at the highest annualized
rate shall be increased by 16%. Anything in this Agreement to the contrary
notwithstanding, if the Executive's employment with the Company is
terminated other than for Cause prior to the date on which a Change of
Control occurs, and it is reasonably demonstrated that such termination (i)
was at the request of a third party who has taken steps reasonably
calculated to effect a Change in Control or (ii) otherwise arose in
connection with or anticipation of a Change in Control then for all
purposes of this Agreement the date of the Change in Control shall mean the
date immediately prior to the date of such termination.
(v) BY THE EXECUTIVE. Executive may terminate his employment and this
Agreement for any or no reason whatsoever at any time upon sixty (60) days'
notice.
(A) Good Reason. In the event the Executive gives such notice for and
within sixty (60) days of having Good Reason, on the effective date of his
resignation he shall be entitled to receive an amount equal to one (1) 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, COBRA Continuation under
subparagraph (B) of paragraph (iv) above and a pro rata bonus under subparagraph
(C) of paragraph (iv) above.
(B) Effect of Change of Control. In the event the Executive gives such
notice within the period of thirty (30) days beginning six (6) months
immediately following a Change of Control, regardless of whether the Executive
has Good Reason to terminate his employment, he shall receive the identical
benefits as if the termination had occurred under Section 5(a)(iv)(D) above. In
the event that at any time within one (1) year following a Change of Control the
Executive gives such notice for and within
6
sixty (60) days of having Good Reason, he shall receive the identical benefits
as if the termination had occurred under Section 5(a)(iv)(D) above. Anything in
this Agreement to the contrary notwithstanding, if the circumstances
constituting Good Reason occur prior to the date on which a Change of Control
occurs, and it is reasonably demonstrated that such circumstances (i) occurred
at the request of a third party who has taken steps reasonably calculated to
effect a Change in Control or (ii) otherwise arose in connection with or
anticipation of a Change in Control then for all purposes of this Agreement the
date of the Change in Control shall mean the date immediately prior to the
occurrence of such circumstances.
(C) Resignation Without Good Reason. In the event the Executive
resigns other than in the circumstances described in subparagraphs (A) and (B)
above, he shall not be entitled to any additional Salary or COBRA Continuation
or pro rata bonus. 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 COBRA Continuation and
pro rata bonus in accordance with this paragraph if applicable.
(vi) EXPIRATION.
(A Immediately prior to the Expiration Date, if the Executive is then
employed, the Executive shall be entitled to receive an amount equal to the
monthly equivalent of his then Salary multiplied by his full years and fraction
of year of service with the Company, its affiliates and their predecessors (but
not more than one (1) times his then Salary) payable in a single lump sum within
thirty (30) days of such Expiration Date, COBRA Continuation under subparagraph
(B) of paragraph (iv) above and a pro rata bonus under subparagraph (C) of
paragraph (iv) above. The Salary benefit provided by this paragraph (vi) shall
be reduced (but not below zero) by the amount of any other cash severance
benefit to which the Executive may then be entitled under any general severance
plan or policy of the Company. If the Company and the Executive extend this
Agreement, or enter into a new employment agreement, providing for the
Executive's continued employment after the Expiration Date, the Executive shall
not be entitled to the benefits in this subparagraph and such benefits shall not
necessarily be required to become a part of such extended or new agreement.
(B) In the event that a Change of Control occurs within seven (7)
months prior to the Expiration Date, then the severance provisions of
subparagraphs (iv)(D) and (v)(B) above shall continue to apply for a period of
seven (7) months following such Change of Control notwithstanding the occurrence
of the Expiration Date prior to the end of such period; provided, however, that
such severance provisions shall not be applicable following the Expiration Date
in the event that upon his termination of employment the Executive is covered by
severance provisions contained in any new written agreement entered into by the
Executive and the Company for the period after the Expiration Date.
7
(b) DEFINITIONS. For these purposes:
(i) "Cause" means the Executive has: (A) been convicted of, or has
pled guilty or nolo contendere to, or been indicted for 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 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 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).
8
(iii) "Good Reason" means (A) the assignment to the Executive of any
duties inconsistent with the Executive's status as a senior executive officer of
the Company or a meaningful alteration, adverse to the Executive, in the nature
or status of the Executive's responsibilities (other than reporting
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; or (E) 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. 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, however.
(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 such 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, except as otherwise provided in subsection
(a)(vi) 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.
9
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.
(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
10
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, 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.
(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.
11
(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):
If to the Company, to:
Wheeling-Pittsburgh Steel Corporation
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.
12
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. 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.
(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
13
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.
(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.
14
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
and year first above written.
WHEELING-PITTSBURGH STEEL CORPORATION
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
EXECUTIVE
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
15
EXHIBIT A
RELEASE OF CLAIMS
In exchange for the severance pay and other benefits set forth in my amended and
restated employment agreement with Wheeling-Pittsburgh (the "Company") dated
February 15, 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.
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.
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Executive
Dated: February 15, 2006
-17-
