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Exhibit 10.8
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is dated as of March 13,
2000, (the "Effective Date") and is entered into between WEIRTON STEEL
CORPORATION, a Delaware corporation (the "Company"), and XXXX X. XXXXXX (the
"Employee").
WHEREAS, Employee and Company desire to embody in this Agreement the
terms and conditions of Employee's employment by the Company;
NOW, THEREFORE, the parties hereby agree as follows:
1. Employment. Company hereby employs Employee and Employee hereby
accepts employment from Company upon the terms and conditions hereinafter set
forth.
2. Term and Termination of Employment; Survival of Obligations.
(a) Term. The term of employment under this Agreement shall
commence on the Effective Date and end on the date this Agreement is
terminated by either the Company or Employee in accordance with the
provision of this Agreement (the "Termination Date").
(b) Termination by Company. Company may, at its election,
terminate the employment of Employee and related obligations of Company
under this Agreement as follows:
(1) For Disability. Upon 30 days prior notice in writing in
the event Employee has been so incapacitated that he has been
unable to perform the services required of him hereunder for a
period of at least 150 of 180 consecutive calendar days and
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such inability is continuing at the time of the giving of such
notice. Company, at its sole cost and expense, shall continue
to provide and keep in force during the period of incapacity
which remains after the Termination Date, but not after
Employee attains age 65, income replacement, sickness and
accident and health insurance coverages for Employee and his
dependents of the types provided by the group benefit plans of
Company for employees of the highest job classification under
Company's Program of Insurance Benefits for Salaried Employees
(the "Insurance Program"), which coverages shall be at a level
commensurate with those provided to employees in the highest
job classification.
(2) For Just Cause. "For just cause" upon notice in writing of
such termination to Employee. Termination of Employee's
employment by Company shall constitute a termination "for just
cause" only if such termination is for one or more of the
following reasons: (i) conviction of a felony punishable by a
prison sentence of more than one year; (ii) habitual use of
drugs without a prescription or habitual, excessive use of
alcohol to the extent that any of such uses materially
interferes with Employee's performance of his duties; (iii)
refusal or failure, after written notice from Company, by
Employee to perform or discharge duties and responsibilities
appropriate to his position as President and Chief Operating
Officer which are properly assigned to him by the Chief
Executive Officer of the Company or the Board of Directors of
the Company (the "Board"), which refusal or failure amounts to
an extended and gross neglect of his duties to Company; (iv)
breach of Section 8 of this Agreement; or (v) breach of any
confidentiality agreement between Company and Employee.
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(3) Without Cause. Without cause upon not less than 5 days
prior notice in writing, provided that within 10 days of the
Termination Date Company shall pay to Employee a single lump
sum amount (the "Lump Sum Payment"), calculated as follows,
where:
X is 24 months of Employee's Base Salary (as
hereinafter defined); and
Y is any applicable federal, state or local tax or
liability imposed on Employee as a result of the Lump
Sum Payment, including, without limitation, social
security taxes, income taxes and excise taxes, which
amount shall be withheld by Company and paid by
Company to the appropriate agency for and on behalf
of Employee.
Then, LUMP SUM PAYMENT = X + Y.
It is the intent of the parties that the foregoing Lump Sum Payment calculation
shall result in the receipt by Employee of an amount equal to 24 months of
Employee's Base Salary net of all applicable federal, state and local taxes, and
the payment by Company to the appropriate taxing authority of any applicable
federal, state or local tax or liability imposed on Employee. Furthermore, for a
period of 24 months following the Termination Date, Company shall continue to
provide for Employee the medical, dental, life and disability insurance, which
were provided to Employee immediately prior to the giving of such notice. In the
event of a termination pursuant to this Section 2(b)(3), Employee shall be
treated as an inactive employee for 24 months after the Termination Date. If
Company terminates the employment of Employee in accordance
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with Section 2(b)(1) or if Employee is at the time under an incapacity of a
nature or type which would entitle Company to terminate such employment, but for
the failure of the passage of the 180 consecutive day period set forth in
subsection (1) of Section 2(b), Company shall not be deemed to have terminated
the employment of Employee without cause pursuant to this Section 2(b)(3).
Company shall be deemed to have agreed to a termination
without cause in accordance with this subsection (3) of Section 2(b) from and
after the date, without the consent of the Employee (which may be obtained
before or after the relevant event), (x) Employee is assigned duties other than
those of President and Chief Operating Officer, (y) Employee is required to
report other than to the Chief Executive Officer or the Board of Directors of
the Company, or (z) Employee is required to reside other than in the Weirton,
West Virginia area or Greater Pittsburgh area in order to perform his duties for
Company.
(c) Termination by Employee. Employee may terminate his
employment hereunder upon 90 days prior notice in writing thereof to
Company, in which event from and after the Termination Date, Company
shall have no further obligations under this Agreement, except as
required by law or as specifically set forth herein; provided, that
upon the receipt of such notice, Company may terminate the employment
of the Employee at any earlier date of Company's choosing after its
receipt of such notice and prior to the expiration of the 90 day notice
period.
(d) Survival of Obligations. Except as otherwise specifically
set forth in this Agreement or as otherwise prohibited by law, all
rights and obligations of Employee, except such obligations as are
created by Sections 6, 7 and 8 hereof, and all obligations of Company
under this Agreement, shall cease on, and as of, the Termination Date.
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3. Compensation.
(a) Salary and Bonus. The Company shall pay Employee a salary
(the "Base Salary") of $300,000 per year or such greater amount as may
be from time to time be authorized by the Board or any authorized
committee thereof. The Base Salary shall be payable in such
installments and at such times as conform to the general payroll
practices of Company. Employee shall be eligible to participate in
Company's Performance Incentive Plan (the "Bonus Plan") at a level
commensurate with his position as President and Chief Operating Officer
of Company. In the event the employment of Employee is terminated by
Company prior to the end of any fiscal year of Company, except pursuant
to Section 2(b)(2) or 2(c), the bonus, if any, payable pursuant to the
Bonus Plan for the fiscal year in which termination occurs shall be
pro-rated by multiplying the bonus amount by a fraction, the numerator
of which is the number of days elapsed in the fiscal year to and
including the Termination Date and the denominator of which is 365. If
the employment of Employee is terminated pursuant to Section 2(b)(2) or
2(c) no bonus shall be paid with respect to the fiscal year in which
such termination occurs.
(b) Automobile and Expenses. Company shall make available to
Employee an automobile in accordance with the Company's automobile
policy generally applicable to its Senior Executives.
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(c) Other Benefit Programs. Company shall provide, during the
term hereof, coverage for Employee under the Insurance Program and its
other benefit programs, as applicable from time to time to its salaried
employees of the highest job classification. In the event that the
employment of Employee is terminated pursuant to Section 2 under
circumstances where Company has an obligation after the Termination
Date to continue coverages under one or more health care plans in the
Insurance Program, or otherwise, such coverages in all cases shall be
coordinated with similar or comparable coverages thereafter provided to
Employee by any third party employer, with such third party coverages
being deemed primary and the coverages maintained by Company being
deemed secondary or supplementary, so as to be reduced on a
dollar-for-dollar basis by the amount of benefits payable under such
third party coverages. Employee shall submit to any required physical
examination and shall provide any required information in connection
with the acquisition or maintenance of any insurance pursuant to this
Agreement. Employee shall be eligible for, and participate in, such
other perquisites, as are generally available to salaried employees of
Company of the highest job classification and commensurate with other
Senior Executives, and nothing in this Agreement shall be deemed to
preclude Company from granting such additional remuneration or benefits
to Employee as it shall determine in its sole discretion.
(d) Supplemental Executive Retirement Plan. As of the
Effective Date, Employee shall be entitled to participate in the
Company's Supplemental Executive Retirement Plan ("SERP"), established
in 1994 for management employees in Job Class 56
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and above. Employee shall receive "Benefit Service" (as defined in the
SERP) under the SERP for his prior employment with Company and Company
shall fund the SERP for such prior years of Benefit Service and for
Employee's future Benefit Service, net of the previous funding of the
SERP paid to the Employee in accordance with the terms of the SERP in
effect at the time of his earlier termination of employment in 1996, as
is evidenced by the letter from Buck Consultants dated June 2, 2000
attached hereto and made a part hereof as Appendix "A".
(e) Stock Options. From time to time, Company shall cause
stock options to purchase common stock of Company or, in lieu thereof
or in addition thereto, stock appreciation rights to be granted to
Employee in amounts and at such times as are determined by the
Management Development and Compensation Committee of the Board.
4. Duties. Employee is engaged as President and Chief Operating Officer
of the Company and shall perform and discharge well and faithfully the duties
commensurate with such position which may be assigned to him from time to time
by Company in connection with the conduct of its business. If Employee is
elected or appointed a director of the Company or an officer or director any
subsidiary or affiliated entity thereof during the term of this Agreement,
Employee will serve in such capacity without further compensation.
5. Extent of Services. Employee shall devote his entire business time,
attention and energies to the businesses of Company and shall not during the
term of this Agreement be engaged in any other business activity, whether or not
such business activity is pursued for gain,
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profit or other pecuniary advantage; but this shall not be construed as
preventing Employee from investing his personal assets in businesses which do
not compete with Company in such form or manner as will not require any
significant services on the part of Employee in the operation of the affairs of
the companies in which such investments are made and in which his participation
is solely that of an investor, except that Employee may serve as a director of a
company having businesses which do not compete with Company or as otherwise
authorized by the Board, so long as such service does not interfere with his
duties and services hereunder, and except that Employee may purchase securities
in any corporation whose securities are regularly traded, provided that such
purchases shall not result in his collectively owning beneficially at any time
1% or more of the equity securities of any corporation engaged in a business
competitive to that of Company.
6. Disclosure of Information. Employee recognizes and acknowledges that
Company's trade secrets and proprietary processes as they may exist from time to
time are valuable, special and unique assets of Company's business, access to
and knowledge of which are essential to the performance of Employee's duties
hereunder. Employee will not, during or after the term of his employment, in
whole or in part, disclose such secrets or processes acquired by virtue of his
employment hereunder or his service as a director to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever,
nor shall Employee make use of any such property for his own purposes or for the
benefit of any person, firm, corporation or other entity (except Company) under
any circumstances during or after the term of his employment, provided, that
after the term of his employment, these restrictions shall not
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apply to such secrets and processes which are then in the public domain
(provided that he was not responsible, directly or indirectly, for such secrets
or processes entering the public domain without Company's consent).
7. Inventions. Employee hereby sells, transfers and assigns to Company
or to any person, or entity designated by Company all of the right, title and
interest of Employee in and to all inventions, ideas, disclosures and
improvements, whether patented or unpatented, and copyrightable material made or
conceived by Employee, solely or jointly during the period of his employment
hereunder which relate to methods, apparatus, designs, products, processes or
devices, sold, leased, used or under consideration or development by Company, or
which otherwise relate to or pertain to the business, functions or operations of
Company. Employee shall communicate promptly and disclose to Company, in such
form as Employee may be required to do so, all information, details and data
pertaining to the aforementioned inventions, ideas, disclosures and improvements
and to execute and deliver to Company such formal transfers and assignments and
such other papers and documents as may be required of Employee to permit Company
or any person or entity designated by Company to file and prosecute the patent
applications and, as to copyrightable material, to obtain copyright thereof. Any
invention relating to the business of Company and disclosed by Employee within
one (1) year following the Termination Date shall be deemed to fall within the
provisions of this Section, unless proved by Employee to have been first
conceived and made following the Termination Date.
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For purposes of Sections 5, 6, 7 and 8, unless the context
otherwise requires, the term "Company" shall include divisions, subsidiaries and
controlled affiliated entities of the Company, and "businesses" of Company shall
include businesses of any of such entities.
8. Nondisparagement. For the period commencing on the Effective Date
and continuing for 24 months following the Termination Date, Employee will not,
in any form, disparage Company, its officers or directors or otherwise make
comment adverse to Company concerning any aspect of the business or practices,
past or then present, of Company
9. Injunctive Relief. If there is a breach or threatened breach by
Employee of any of the provisions of Sections 6, 7 or 8 of this Agreement,
Company shall be entitled to an injunction from a court of competent
jurisdiction restraining Employee from such breach. Nothing herein shall be
construed as prohibiting Company from pursuing any other remedies against
Employee for such breach or threatened breach.
10. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and sent by certified mail to his residence in the
case of Employee, or to the Secretary, Weirton Steel Corporation, Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx, Xxxx Xxxxxxxx 00000, in the case of Company.
11. Waiver of Breach. A waiver by Company or Employee of a breach of
any provision of this Agreement by the other party shall be in writing and shall
not operate or be construed as a waiver of any subsequent breach by the other
party.
12. Arbitration. Subject to the provisions of the first sentence of
Section 9 hereof, any dispute between Employee and Company arising under this
Agreement, whether or not a
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case or controversy, shall be resolved solely by arbitration in Pittsburgh,
Pennsylvania in accordance with the rules of the American Arbitration
Association, and judgment upon any award may be entered in any court having
jurisdiction thereof.
13. Legal Fees and Expenses. Company shall promptly reimburse Employee
for the reasonable legal fees and expenses incurred by Employee in connection
with enforcing any right of Employee pursuant to and afforded by this Agreement;
provided, however, that Company only will reimburse Employee for such legal fees
and expenses if, in connection with enforcing any right of Employee pursuant to
and afforded by this Agreement, either (i) a judgment has been rendered in favor
of the Employee by a duly authorized court of law; (ii) an arbitration award in
favor of the Employee has been issued; or (iii) Company and Employee have
entered into a settlement agreement providing for the payment to Employee of any
or all amounts due hereunder.
14. Entire Agreement; Governing Law. This Agreement contains the entire
agreement of the parties, superseding any prior agreement or arrangement between
the parties concerning the employment of Employee by Company, whether written or
oral, and any such agreements are null and void except that any prior stock
option agreements between the Company and the Employee shall continue to be
obligations of Company and Employee. This Agreement may be changed only by a
writing signed by the party against whom enforcement is sought. This Agreement
shall be governed by the laws of the State of Delaware without regard to its
principles of conflicts of laws.
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15. Severability. If any provision of this Agreement or the application
thereof to any circumstance shall to any extent be held invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby,
and shall be valid and enforceable to the fullest extent permitted by law, but
only if and to the extent such enforcement would not materially and adversely
frustrate the parties' essential objectives as expressed herein.
16. Termination of Term of Agreement. If Employee, in the reasonable
opinion of Company, breaches Section 8 of this Agreement by disparaging the
Company, its officers or directors or breaches a confidentiality agreement
between the Company and the Employee, which are respectively defined as events
of just cause in Sections 2(b)(2)(iv) and (v), Company, in its sole discretion
and without waiving any other right it has or may have under this Agreement or
under any other agreement or policy applicable to the Employee, may provide
written notice to the Employee that the term of this Agreement is ended
immediately upon delivery of such notice. The termination of the term of this
Agreement pursuant to this Section 16 shall not be deemed an assignment of other
duties or a change in reporting relationships under Sections 2(b)(3)(x) or (y)
of this Agreement and the termination of the term pursuant to this Section 16
shall not be constructive or actual discharge of Employee from employment with
Company for purposes of this Agreement. No Lump Sum Payment under Section
2(b)(3) of this Agreement will be due or payable in connection with or as a
result of delivery of the notice pursuant to this Section 16 ending the term of
this Agreement. If a notice of the termination pursuant to this Section 16 of
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the term of this Agreement is delivered to Employee, he will immediately become
an employee at will of the Company without benefit of this Agreement or any
other employment agreement or representation of continued employment, express or
implied.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
day first hereinabove written.
WEIRTON STEEL CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
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Title Exec. V.P.-Human Resources & Corp. Law
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/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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