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 Xxxxx X.
Page, currently residing at 000 Xxxxxxxxxx Xxxxx, Xxxxxxx, 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”).
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.
The Executive shall serve as the President and Chief Operating 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
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 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. |
(180) 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.”
In return for his services hereunder, the Executive shall be entitled to the following:
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(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 case
of calendar year 2006 and in the event of termination), to be made no later than March 15 of the
following calendar year, of an amount equal to 16% of the Executive’s Salary as of the last day of
such calendar year (or last day of employment in the event of termination) to a supplemental
executive retirement plan (SERP) to be established by the Company.
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.
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(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 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.
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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. Notwithstanding the above, if, as of the date of
the Change of Control, the Executive’s highest annualized rate of salary has not been increased by
at least sixteen percent (16%) above such rate existing on the Effective Date, then for the
purposes of calculating the Executive’s payment under this subparagraph (D), the Executive’s
highest annualized rate shall be increased to an amount 16% above the highest annualized rate at
the Effective Date.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
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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 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. 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 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 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.
(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 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”
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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).
(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
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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. 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.
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(c) Non-Solicitation and Non-Compete. The Executive agrees that,
(i) during the term hereof, he will not, directly or indirectly, either as a principal, agent,
employee, employer, stockholder, co-partner or in any other capacity whatsoever, engage in any
outside activity, whether or not competitive with the business of the Company, that could
foreseeably give rise to a conflict of interest or otherwise interfere with his duties and
obligations to the Company;
(ii) during the term hereof and for twenty-four (24) months after
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the term, he will not, directly or indirectly, either as a principal, agent, employee, employer,
stockholder, co-partner or in any other capacity whatsoever, solicit, hire or attempt to hire, or
assist others in soliciting, hiring or attempting to hire, any individual employed by the Company
at any time while the Executive was also so employed, or encourage any such individual to terminate
his or her relationship with the Company; and
(iii) during the term hereof and for 24 months after the term, he will not directly or
indirectly, either as a principal, agent, employee, employer, stockholder, co-partner or in any
other capacity whatsoever, engage in or undertake any planning for the development, construction or
operation of continuous electric arc furnace steel manufacturing or its technology or operating
practices.
(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.
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If to the Company, to:
Wheeling-Pittsburgh Steel Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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Attention: Chief Executive Officer
Telecopy: 000-000-0000
Telecopy: 000-000-0000
with a copy to the Company’s Chief Financial Officer at the same address.
If to the Executive, at his last residence shown on the records of the Company.
Any such notice shall be deemed to have been received (i) if delivered personally, when received,
(ii) if sent by overnight courier, when sent, (iii) if mailed, two (2) days after being mailed as
described above and (iv) in the case of facsimile transmission, when confirmed by facsimile machine
report.
(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
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RELATIONSHIP WITH THE EMPLOYER OR ANY AFFILIATE TRIED BEFORE OR DETERMINED BY A JURY OR TO
CLAIM OR RECOVER PUNITIVE DAMAGES.
(k) Governing Law. This Agreement is to be governed and construed according to the
internal substantive laws of the Commonwealth of Pennsylvania.
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| WHEELING-PITTSBURGH STEEL CORPORATION | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| EXECUTIVE: | ||||||
| /s/ Xxxxx X. Page | ||||||
| Xxxxx X. Page | ||||||
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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 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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