EMPLOYMENT AGREEMENT April 1, 2006
Exhibit 10.2
April 1, 2006
This Agreement, effective as of the above date (the “Effective Date”), is by and between Xxxx X.
Xxxxxx, currently residing at 000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 (the “Executive”), 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”). Upon the
Effective Date, the Amended and Restated Retention Agreement, dated as of February 15, 2006 (the
“Prior Agreement”), between the Company and the Executive shall terminate and be of no further
force or effect (with the exception of the indemnification and other provisions that are
specifically provided in such agreement to survive termination).
In consideration of the covenants and conditions herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged by each party, and intending to be legally
bound, 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.
The Executive shall serve as the Executive Vice President and Chief Financial Officer of the
Company, with those authorities, duties and responsibilities customary to that position and such
other authorities, duties and responsibilities as the Board of Directors of Parent (the “Board”) or
the Company’s 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 in writing by the 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 the second anniversary of the Effective Date (the “Initial Employment Term”)
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 Executive’s employment under this Agreement shall renew automatically for successive one
(1)-year periods, unless at least ninety (90) days prior to the end of the Initial Employment Term
or any subsequent anniversary of the Effective Date either party shall have given notice
(“Termination Notice”) to the other party that the term of employment shall terminate on that
anniversary date. 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(f), 4(g), 5, 6, and 7 hereof shall survive the termination of this
Agreement and of the Executive’s employment hereunder (whether or not this Agreement terminates
during its term or by non-renewal).
4. COMPENSATION.
In return for his services hereunder, the Executive shall be entitled to the following:
(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 $275,000 until May 4, 2006, and thereafter at $319,000, subject to annual review and upward
adjustment at the determination and sole discretion 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 short-term incentive plans and programs for executives as the Board
may establish from time to time, subject to the applicable terms and conditions of such plans and
programs and to the discretion of the Board or any administrative or other committee provided for
in or contemplated by such plan or program, exercised in accordance with applicable law. The Board
may also award other bonuses from time to time in its discretion.
(c) Long-Term Incentives. The Executive shall be eligible to participate in such
long-term incentive plans and programs for executives as the Board may establish from time to time,
subject to the applicable terms and conditions of such plans and programs and to the discretion of
the Board or any administrative or other committee provided for in or contemplated by such plan or
program, exercised in accordance with applicable law.
(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 peer 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
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administrative or other committee provided for in or contemplated by such plan, exercised in
accordance with applicable law. The Executive will also be entitled to the following:
(i) Subject to the Company’s standard policies, four (4) weeks of vacation per calendar year
(or any longer period as shall be provided under the Company’s general vacation policies), without
reduction in Salary, to be taken at such times and intervals as shall be determined by the
Executive subject to the reasonable business needs of the Company and to Company policies as in
effect from time.
(ii) Appropriate office space, administrative support, e.g., secretarial assistance, and such
other facilities and services as are suitable to the Executive’s position and adequate for the
performance of the Executive’s duties.
(iii) The use of a company car. The Company shall be responsible for the purchase price or
lease payment and shall pay or reimburse all of the Executive’s expenses for gasoline for use of
the Company car, and maintenance and insurance of his Company car, subject to such reasonable
reporting requirements as may be specified by the Company and/or the Internal Revenue Service. The
Executive shall keep and submit records of his business and personal use of the automobile. The
Executive acknowledges that his personal use of the automobile will result in additional taxable
income to him.
(iv) Up to $10,000 per annum in reimbursement of legal and personal tax preparation and
planning assistance.
(v) Payment or reimbursement of the cost of membership for himself and his immediate family in
one country club and 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) Participation in the Company’s 2006 Supplemental Executive Retirement Plan (SERP).
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 or
required by applicable law.
(e) Business Expenses. The Executive will be entitled to reimbursement of all
reasonable business 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
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the Company, subject to such reasonable substantiation and documentation as may be specified
by the Company.
(f) Indemnification. The Company shall, and the Company shall use its best efforts to
cause the Parent and any subsidiaries or affiliates it may now or hereafter have to, indemnify the
Executive to the maximum extent permitted by law and regulation in connection with any liability,
expense or damage which the Executive incurs as a result of the Executive’s employment and
positions with the Company and its current or future subsidiaries as contemplated by this
Agreement, provided that the Executive shall not be indemnified with respect to any matter as to
which he shall have been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interest of the Company and its subsidiaries.
The Company, on behalf of itself and its current and future subsidiaries, hereby confirms that the
occupancy of all offices and positions which in the future are or were occupied or held by the
Executive in connection with his employment under this Agreement have been so occupied or held at
the request of and for the benefit of the Company and its subsidiaries for purposes of the
Executive’s entitlement to indemnification under applicable provisions of the respective articles
of organization and/or other similar documents of the Company and its subsidiaries. Expenses
incurred by the Executive in defending a claim, action, suit, investigation or proceeding shall be
paid by the Company in advance of the final disposition thereof upon the receipt by the Company of
an undertaking by the Executive to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified hereunder. The foregoing rights are not exclusive and shall not
limit any rights accruing to the Executive under any other agreement or contract or under
applicable law.
(g) Parachute Payment Taxes. Notwithstanding any other provisions of the 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 in part) to the excise tax imposed by Section
4999 of the Code (together with any interest or penalties imposed with respect to such excise tax,
the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a
“Gross-Up Payment”) in an amount such that after payment of the Executive of all taxes (including
any interest or penalties imposed with respect to such taxes), including without limitation any
income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount
equal to the Excise Tax.. All determinations required to be made under this Section 4(g),
including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determination, shall be made by the
Company’s accountants or such other certified public accounting firm reasonably acceptable to the
Company as may be designated by the Executive which shall provide detailed supporting calculations
both to the Company and the Executive.
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5. TERMINATION OF EMPLOYMENT AND EFFECTS THEREOF.
(a) Termination. This Agreement and the Executive’s employment under this Agreement
may be terminated 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 and SERP 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
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 eligible for benefits under the Company’s 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 his 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 a one-time payment in an amount equal to two (2) times his annual Salary at the highest
annualized rate in effect during the one year immediately preceding such date, 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
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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 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 (as defined in
subparagraph (b) below), 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. 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 sixty (60) days of having Good Reason, he shall receive the identical
benefits as if the
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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 (and will be deemed to be an employee for such period) as well as Salary and COBRA
Continuation and pro rata bonus in accordance with this paragraph if applicable.
(vi) Expiration. In the event that the Company or the Executive gives a Termination
Notice under Section 3(a), then upon the expiration of the term of this Agreement, if the Executive
is then employed, 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 termination, payable in a single lump sum within thirty (30) days of the expiration of
the term of this Agreement, 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.
(b) Definitions. For these purposes:
(i) “Cause” means the Executive has: (A) been convicted of, or has pled guilty or nolo
contendere to, any felony, or any misdemeanor involving moral turpitude under the laws of the
United States or any state or political subdivisions thereof; (B) committed a breach of duty of
loyalty which is materially detrimental to the Company; (C) materially violated any provision of
Section 6 of this Agreement; (D) failed to perform or adhere to explicitly stated duties or
guidelines of employment or to follow the directives of the Board (which are not unlawful to
perform or to adhere to or follow and which are within the scope of Executive’s duties) following a
written warning that if such failure continues it will be deemed a basis for a “For Cause”
dismissal; or (E) acted with gross negligence or willful misconduct in the performance of the
Executive’s duties. No act, or failure to act, on the Executive’s part shall be deemed “willful”
unless done, or omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive’s act, or failure to act, was in the best interest of the Company.
Following
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a Change of Control, subsection (D) above shall be deleted from this definition of “Cause.”
(ii) “Change of Control” means the occurrence of any of the following: (A) a merger or
consolidation of Parent or the Company with or into another person or the sale, transfer, or other
disposition of all or substantially all of the Parent’s or Company’s assets to one or more other
persons in a single transaction or series of related transactions, unless securities possessing
more than 50% of the total combined voting power of the survivor’s or acquirer’s outstanding
securities (or the securities of any parent thereof) are held by a person or persons who held
securities possessing more than 50% of the total combined voting power of Parent immediately prior
to that transaction; (B) any person or group of persons (within the meaning of Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended and in effect from time to time), other than the
Parent, the Company or an affiliate, directly or indirectly acquires beneficial ownership
(determined pursuant to Securities and Exchange Commission Rule 13d-3 promulgated under the said
Exchange Act) of securities possessing more than 50% of the total combined voting power of the
Parent’s outstanding securities pursuant to a tender or exchange offer made directly to the
Parent’s stockholders; or (C) over a period of 36 consecutive months or less, there is a change in
the composition of the Board such that a majority of the members of the Board (rounded up to the
next whole number, if a fraction) ceases to be composed of individuals who either (1) have been
members of the Board continuously since the beginning of the 36-month period referred to above or
(2) have been elected or nominated for election as Board members during such period by at least a
majority of the members Board described in the preceding clause (1) who were still in office at the
time that election or nomination was approved by the Board, provided, however, that a Change of
Control shall be deemed to have occurred in any event if, by reason of one or more actual or
threatened proxy contests for the election of directors or otherwise, a majority of the Board shall
consist of individuals, other than directors referred to in clause (1) above, whose election as
members of the Board occur within such 36-month period at the request or on behalf of the same
person or group of persons (within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended and in effect from time to time).
(iii) “Good Reason” means (A) the assignment to the Executive of any duties materially
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
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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. Notwithstanding the foregoing, the events described in (D) and (E) above shall not
constitute “Good Reason” where they are the direct result of the elimination or modification of
benefit plans or arrangements by the Company with respect to employees generally.
(c) Cessation of Authority on Termination. Immediately upon the Executive terminating
or being terminated from his position with the Company for any reason or no reason, the Executive
will stop serving the functions of the terminated or expired position or any other positions with
any affiliate, and shall be without any of the authority of or responsible for any 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 no later than twenty-one (21) days
following his termination he shall have executed and delivered to the Company a general release of
claims in the form attached hereto as Exhibit A.
(f) Section 409A. Notwithstanding the foregoing provisions of this Agreement to the
contrary, if the Company determines that any amounts to be paid to the Executive under this
Agreement are subject to Section 409A of the Code, then the Company shall in good faith adjust the
form and the timing of such payments as it reasonably determines to be necessary or advisable to be
in compliance with Section 409A. If such a payment must be delayed to comply with Section 409A,
then the deferred payments shall be paid at the earliest practicable date permitted by Section
409A.
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
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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, 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
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(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) Injunctive Relief. The Executive acknowledges that a breach of any of the
covenants contained in this Section 6 may result in material, irreparable injury to the Company for
which there is no adequate remedy at law, that it shall not be possible to measure damages for such
injuries precisely and that, in the event of such a breach or threat of breach, the Company shall
be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction
restraining the Executive from engaging in activities prohibited by this Section 6 or such other
relief as may be required to specifically enforce any of the covenants in this Section 6. The
Executive agrees and consents that injunctive relief may be sought in any state or federal court of
record in the Commonwealth of Pennsylvania, or in the state and county in which a violation may
occur or in any other court having jurisdiction, at the election of the Company; to the extent that
the Company seeks a temporary restraining order (but not a preliminary or permanent injunction),
the Executive agrees that a temporary restraining order may be obtained ex parte. The Executive
agrees and submits to personal jurisdiction before each and every court designated above for that
purpose.
(e) Blue-Pencilling. The parties consider the covenants and restrictions contained in
this Section 6 to be reasonable. However, if and when any such covenant or restriction is found to
be void or unenforceable and would have been valid had some part of it been deleted or had its
scope of application been modified, such covenant or restriction shall be deemed to have been
applied with such modification as would be necessary and consistent with the intent of the parties
to have made it valid, enforceable and effective.
(f) 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.
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(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) 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.
(d) 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.
(e) 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(e):
If to the Company, to:
Wheeling-Pittsburgh Steel Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopy: 000-000-0000
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.
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If to the Executive, at his last residence shown on the records of the Company.
Any such notice shall be deemed to have been received (i) if delivered personally, when received,
(ii) if sent by overnight courier, when sent, (iii) if mailed, two (2) days after being mailed as
described above and (iv) in the case of facsimile transmission, when confirmed by facsimile machine
report.
(f) Arbitration of Claims. The parties hereto agree that except as provided in
Section 6(d) 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.
(g) 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.
(h) 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
13
Company shall pay (or the Executive shall be entitled to recover from the Company, as the case
may be) the Executive’s reasonable attorneys’ fees and costs and expenses in connection with the
enforcement of his rights, including the enforcement of any arbitration award, up to $50,000 in the
aggregate.
(i) Amendment. This Agreement may be modified only by an instrument in writing
executed by the parties hereto.
(j) Interpretive 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.
(k) Governing Law. This Agreement is to be governed and construed according to the
internal substantive laws of the Commonwealth of Pennsylvania.
(l) 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.
(m) 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.
(n) Withholding. Any payments provided for in this Agreement shall be paid net of any
applicable tax withholding required under federal, state or local law.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date and year first
above written.
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| WHEELING-PITTSBURGH STEEL CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| EXECUTIVE: | ||||
| /s/ Xxxx X. Xxxxxx | ||||
Xxxx X. Xxxxxx |
||||
15
EXHIBIT A
RELEASE OF CLAIMS
In exchange for the severance pay and other benefits set forth in my employment agreement with
Wheeling-Pittsburgh Steel Corporation (the “Company”) dated April 1, 2006 (as amended through the
date hereof, the “Employment Agreement”), I forever give up, waive and release any and all claims,
charges, complaints, grievances or promises of any and every kind I may have up to the date of this
Release against the Company, its parent, Wheeling-Pittsburgh Corporation, and other affiliates and
its and their directors, officers and employees, and related persons, including, without
limitation, my rights under Title VII of the Civil Rights Act of 1964, as amended by the Civil
Rights Act of 1991, the Employee Retirement Income Security Act (“ERISA”), the Equal Pay Act, the
Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”) and
other federal and state statutes prohibiting discrimination on the basis of age, sex, race, color,
handicap, religion and national origin and any common law claims, including without limitation,
claims for defamation, intentional infliction of emotional distress, intentional interference with
contract, negligent infliction of emotional distress, personal injury, breach of contract, unpaid
wages or compensation, or claims for unreimbursed expenses. This release shall not extend to any
claim to amounts due me in accordance with the terms of my Employment Agreement after termination
of my employment or to claims to indemnity I may have under the terms of my Employment Agreement,
applicable law, or the Company’s or its parent’s articles of organization or bylaws for having
served as a director, officer or employee of the Company, its parent or any affiliate.
I acknowledge that I have been advised of my right to consult an attorney before I sign this
Release and that I have twenty-one (21) days to consider whether to sign this Release. If the
Release is not received by the Company at the end of the twenty-one (21) day period, it will be
considered expired and withdrawn and the Company’s severance obligations under my Employment
Agreement void. If I execute this Release prior to the end of the twenty-one (21) day period that
has been provided for me to consider it, I agree and acknowledge that the prior execution was a
knowing and voluntary waiver of my right to consider this Release for a full twenty-one (21) days,
and was due to my conclusion that I had ample time in which to consider and understand this
Release, and in which to review this Release with my counsel.
Nothing in this Release shall be construed to affect the Equal Employment Opportunity Commission’s
(“Commission”) independent right and responsibility to enforce the law. I understand, however,
that, while this Release does not affect my right to file a charge or participate in an
investigation or proceeding conducted by the Commission, it does bar any claim I might have to
receive monetary damages in connection with any Commission proceeding concerning matters covered by
this Release.
I understand I have the right to revoke this Release within seven (7) days of signing it. I
understand that to revoke this Release, I must notice the Company in writing in accordance with the
notice procedures set forth in my Employment Agreement.
Dated:
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