EMPLOYMENT AGREEMENT
Exhibit 10.31
This Employment Agreement (this “Agreement”) is made and entered into effective as of May 5,
2011 (the “Effective Date”), by and between OLYMPIC STEEL, INC., an Ohio corporation (the
“Company”), and XXXXX X. XXXXXXX (“Executive”).
WHEREAS, the Company desires to continue to employ Executive in the position of President and
Chief Operating Officer of the Company, and Executive desires to accept such employment, on the
terms and subject to the conditions hereinafter set forth;
WHEREAS, Executive has valuable knowledge and experience relating to the Company’s businesses
and the industries in which it operates, and the parties desire to provide for his services to the
Company on the terms set forth herein;
WHEREAS, the Company and Executive currently are parties to an employment agreement, effective
as of January 1, 2006 (the “Prior Agreement”) and the Management Retention Agreement, dated April
26, 2000, and amended as of December 31, 2008 (the “Management Retention Agreement”); and
WHEREAS, the Company and Executive desire that this Agreement supersede and completely replace
the Prior Agreement as of the Effective Date.
NOW, THEREFORE, in consideration of the respective covenants and agreements of the parties
herein contained, the Company and Executive agree as follows:
1. Term of Employment. The Company hereby agrees to continue to employ Executive, and
Executive hereby agrees to continue to serve the Company, on the terms and conditions set forth
herein for the period commencing on January 1, 2011 and expiring on January 1, 2016 (the
“Employment Period”). The Employment Period shall automatically be renewed on January 1, 2016 for
a period of an additional three years from such date unless, not later than July 1, 2015, the
Company or Executive has given notice to the other party that it or he, as the case may be, does
not wish to have the Employment Period extended. Such extension shall be included in the defined
term Employment Period. In any case, the Employment Period may be terminated earlier under the
terms and conditions set forth herein.
2. Position and Duties. Executive is the President and Chief Operating Officer of the
Company and reports to the Chief Executive Officer and the Board of Directors for the Company, and
is presently a member of the Board of Directors. In this position, Executive has the
responsibility for the general management and operation of the Company and the performance of such
other executive services and duties as shall be reasonably assigned to and requested of him by, and
subject to the direction and supervision of, the Chief Executive Officer and the Board of Directors
of the Company. Executive shall serve in any position and office with the Company as the Board of
Directors of the Company (the “Board”) may determine from time to time. However, Executive shall
always remain as President and at the level of a senior executive officer of the Company. During
the Employment Period, Executive shall devote substantially all his working time and efforts to the
business and affairs of the Company and serve the Company in its business and perform his duties to
the best of his ability.
3. Compensation.
(a) Salary. Effective April 1, 2011 and for the remainder of the Employment Period
thereafter, Executive shall receive a base salary at the rate of Seven Hundred Thousand Dollars
($700,000) per year (the “Base Salary”). Executive’s salary may be adjusted, although any such
adjustment shall be at the sole discretion of the Board of Directors of the Company or any duly
authorized Committee thereof, including but not limited to the Compensation Committee.
Notwithstanding the foregoing, in no event shall Executive’s salary be adjusted
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below the amount of the Base Salary. Such salary shall be payable in accordance with the
normal policies of the Company for payment of its senior executives.
(b) Benefits Generally. During the Employment Period, Executive shall be eligible to
participate in all welfare and benefit plans which are currently maintained or established, or
which may be established and maintained in the future, by the Company for its senior executives
generally (subject, however, to all of the terms and conditions thereof, including any eligibility
requirements therefor), including but not limited to: (i) group life insurance coverage; (ii)
hospitalization or disability insurance coverage, (iii) retirement plans, including but not limited
to any supplemental executive retirement plan, (iv) long term incentive and equity-based plans; and
(v) the reimbursement plan for financial services and tax planning. For purposes of this
Agreement, no benefit shall be considered to have accrued as of any date under any welfare or
benefit plan referred to in this Section 3(b) if such benefit remains subject to a discretionary
determination under the terms of such plan as of such date.
(c) Expenses. The Company shall reimburse Executive for reasonable direct expenses
incurred by him on behalf of the Company in the performance of his duties during the Employment
Period. Executive shall furnish the Company with such documentation as is requested by the Company
in order for it to comply with the Code and regulations thereunder in connection with the proper
deduction of such expenses.
(d) Bonus Plan. During the Employment Period, Executive shall be eligible for an
annual performance bonus (the “Annual Bonus”) under the Senior Management Compensation Program Plan
of 2011, as such plan may be amended by the Board from time to time, or such other bonus plan that
replaces such plan, in such amount and based on the Company’s performance against specific target
levels as is determined by the Board of Directors of the Company or any duly authorized Committee
thereof, including but not limited to the Compensation Committee of the Board.
If the Company is required to restate its annual financial statements for any fiscal year and
such restatement would reduce the bonus payment for the period covered by such financial
restatement by more than 5%, Executive shall reimburse the Company for the difference between the
bonus actually paid and the bonus payable under the restated financial statement. Executive shall
make such reimbursement not later than sixty (60) days after the restated financial statements have
been made final and disclosed to the public.
(e) Long Term Incentive Plan. During the Employment Period, Executive shall be
eligible to participate in any long term incentive plan, as any such plan may be created or amended
by the Board from time to time.
4. Termination of Employment.
(a) Events of Termination. The Employment Period shall terminate immediately upon the
occurrence of any of the following events:
(i) the death of Executive;
(ii) upon receipt by Executive of the Company’s written notice of intent to terminate due to
Disability (the “Disability Effective Date”);
(iii) voluntary termination by Executive of his employment with the Company;
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(iv) upon receipt by the Executive of the Company’s written notice that specifies the reasons
for termination for Good Cause; or
(v) thirty (30) days after Executive’s receipt of the Company’s written notice terminating
Executive at any time other than for Good Cause, Death or Disability, for any reason or no reason.
For purposes of Section 4, expiration of the Employment Period upon a notice of the Company
under Section 1 that it does not wish to extend the Employment Period shall be deemed a termination
for Good Cause, pursuant to Section 4(a)(iv) and expiration of the Employment Period upon a notice
of Executive under Section 1 that he does not wish to extend the Employment Period shall be deemed
a resignation of Executive pursuant to Section 4(a)(iii).
(b) Notice of Termination. Any termination by the Company for Good Cause (except for
the failure by the Company to extend the Employment Period beyond January 1, 2016) shall be
communicated by Notice of Termination to the other party hereto given in accordance with Section 9.
For purposes of this Agreement, a “Notice of Termination” means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of
Executive’s employment under the provision so indicated and (iii) specifies the Termination Date
(as defined below). The failure or omission by the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good Cause shall not waive
any right of the Company hereunder or preclude the Company from asserting such fact or circumstance
in enforcing the Company’s rights hereunder.
(c) Termination Date. “Termination Date” means (i) if Executive’s employment is
terminated by the Company for Good Cause, the date of termination of employment that is set forth
in the Notice of Termination (which shall not be earlier than the date on which such notice is
given), (ii) if Executive’s employment is terminated by the Company other than for Good Cause or
Disability, or Executive resigns, the date on which the Company or Executive notifies Executive or
the Company, respectively, of such termination, or such later date as may be specified by the
terminating party in such notice, and (iii) if Executive’s employment is terminated by reason of
death or Disability, the date of death of Executive or the Disability Effective Date, as the case
may be.
5. Obligations of the Company upon Termination.
(a) Discharge Other than for Good Cause or Disability. Executive shall be entitled to
the severance benefits specified in this Section 5(a) if, during the Employment Period, the Company
terminates Executive’s employment for any reason other than for Good Cause or Disability, provided
that Executive shall only be entitled to the severance benefits specified in Section 5(a)(ii) if
upon such a termination Executive is not entitled to any payments or benefits in connection with
such termination under the Management Retention Agreement. In any such case:
(i) Accrued Benefits. Executive shall be entitled to any:
(A) incremental Base Salary at the rate then in effect otherwise payable through the
Termination Date to the extent not previously paid, which shall be paid in a lump sum in cash
within thirty (30) calendar days from the Termination Date;
(B) Annual Bonus which has been earned and accrued but remains unpaid which shall be paid in
the same form and at the same time as such Annual
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Bonus, if any, is paid to other senior executive officers as further provided under Section
5(a)(ii)(B);
(C) benefits provided for in Section 3(b) which have accrued up to and including the
Termination Date, subject to the terms and conditions of the welfare and benefit plans referenced
in Section 3(b); and
(D) reimbursement of reasonable expenses incurred up to and including the Termination Date
under the terms of Section 3(c).
(ii) Continuation of Benefits. Provided Executive has executed and delivered to the
Company a Release and Waiver of Claims within 60 days after the Termination Date and Executive
refrains from revoking, rescinding or otherwise repudiating such Release and Waiver of Claims for
all applicable periods during which Executive may revoke it (failure to provide such a release
shall result in the forfeiture of all benefits under this subparagraph (ii)), during the period
ending on the earlier of (x) the last day of the Employment Period as set forth in Section 1 above
(or the last day of the extended Employment Period if this Agreement is renewed for an additional
term pursuant to Section 1 above), (y) a breach by Executive of any obligation set forth in Section
6, or (z) twenty-four (24) months following termination of employment by the Company under Section
5(a), Executive shall be entitled to continue to receive:
(A) an amount equal to Executive’s Base Salary then in effect, which shall be paid in equal
monthly or more frequent installments, on the same schedule and in accordance with the Company’s
regular payroll policies for senior executives, commencing thirty (30) days after the Termination
Date;
(B) an Annual Bonus, if any, determined as follows:
(i) if the other senior executive officers are not entitled to an Annual Bonus payment with
respect to the fiscal year of the Company, then Executive shall not be paid an Annual Bonus for
such year; or
(ii) if the other senior executive officers are entitled to an Annual Bonus payment with
respect to the fiscal year of the Company, then, at the discretion of the Compensation Committee,
the Executive may be paid a portion of the Annual Bonus that otherwise would have been payable to
Executive had he remained employed throughout such year, in the same form and on the same date(s)
as payment is made to the other senior executive officers, in an amount prorated by multiplying
said amount by a fraction where the numerator equals the number of complete months in such partial
year during which Executive was employed and the denominator equals twelve; and
(C) subject to the terms and conditions of the welfare and benefit plans referenced in Section
3(b), and to the extent permitted by applicable law, any benefits provided for in Section 3(b)
under substantially the same terms and conditions, including the cost, if any, to Executive,
subject to generally applicable changes to the level, and cost, of coverage that may be made with
respect to senior executive officers, provided that such continuation shall not be required
hereunder to the extent that Executive is entitled, absent any individual waivers or other
arrangements, to receive during such period the same type of coverage from another employer or
recipient of Executive’s services.
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(b) Death or Disability.
(i) Accrued Benefits. Executive or his estate or beneficiaries, hereunder, as
appropriate, in the event of the death of Executive, shall be entitled to the severance benefits
specified in this Section 5(b) if, during the Employment Period, Executive’s employment with the
Company terminates as a result of Executive’s death or Disability under Section 4(a)(i) or
4(a)(ii). In either such case, Executive shall be entitled to any (i) incremental Base Salary,
(ii) Annual Bonus which has been earned and accrued but remains unpaid which shall be paid in the
same form and at the same time as such Annual Bonus, if any, is paid to other senior executive
officers, (iii) benefits provided for in Section 3(b) which have accrued up to and including the
Termination Date, subject to the terms and conditions of the welfare and benefit plans referenced
in Section 3(b), and (iv) reimbursement of reasonable expenses incurred up to and including the
Termination Date under the terms of Section 3(c). After the Termination Date, Executive shall no
longer be eligible to participate in any of the welfare or benefit plans referenced in Section
3(b), except to the extent and on the terms that participation in any such plan by former employees
is expressly provided for by the terms of such plan.
(ii) Continuation of Benefits. In addition to the Accrued Benefits payable under
Section 5(b)(i), but only to the extent that Executive or his estate or beneficiaries are not
entitled to twelve (12) months of Base Salary in connection with Executive’s termination of
employment as a result of Executive’s death or Disability under the Management Retention Agreement,
Executive or his estate or beneficiaries, hereunder, as appropriate, in the event of the death of
the Executive, shall be entitled to twelve (12) month’s Base Salary payable in equal monthly or
more frequent installments, on the same schedule and in accordance with the Company’s regular
payroll policies for senior executives, commencing thirty days (30) after the Termination Date.
Further, Executive’s surviving spouse, if any, and minor children shall be eligible to continue to
participate in the Company’s health insurance programs, at the expense of the Company for twelve
(12) months after the death or Disability of Executive to the extent such continuation is permitted
by applicable law. After such one-year period, Executive’s dependents shall be entitled to
participate in any insurance program of the Company to the extent required by federal or state law.
No provision of this Agreement shall limit any of Executive’s (or his beneficiaries’) rights under
any insurance, pension or other benefit programs of the Company for which Executive shall be
eligible at the time of such death or disability.
(c) Discharge for Good Cause or Resignation. If Executive’s employment with the
Company is terminated by Executive on a voluntary basis under Section 4(a)(iii) or is terminated by
the Company for Good Cause under Section 4(a)(iv), Executive shall be entitled to (i) payment of
incremental Base Salary only through the Termination Date and thereafter such salary shall end and
cease to be payable, (ii) at the discretion of the Compensation Committee, payment of any Annual
Bonus which has been earned and accrued but remains unpaid which shall be paid in the same form and
at the same time as such Annual Bonus, if any, is paid to other senior executive officers, but in
no event shall any portion of any subsequent Annual Bonus be deemed to have been earned and
accrued, (iii) receive any benefits provided for in Section 3(b) which have accrued up to and
including the Termination Date, subject to the terms and conditions of the welfare and benefit
plans referenced in Section 3(b), and (iv) reimbursement of reasonable expenses incurred up to and
including the Termination Date under the terms of Section 3(c). After the Termination Date,
Executive shall no longer be eligible to participate in any of the welfare or benefit plans
referenced in Section 3(b), except to the extent and on the terms that participation in any such
plan by former employees is expressly provided for by the terms of such plan.
(d) No Further Obligations. Except as expressly set forth in this Section 5,
Executive shall not be entitled to any other payments or benefits under this Agreement as a result
of the termination of Executive’s employment.
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6. Restrictive Covenants.
(a) Non-Competition. While employed by the Company and for a period of twenty-four
(24) months after ceasing to be so employed (the “Restricted Period”) for whatever reason,
Executive shall not, directly or indirectly, own, manage, operate, control or participate in the
ownership, management, operation or control of, or be connected as an officer, partner, director,
consultant or other position, or have any financial interest in with (i) any metal service center
or distributor conducting business within those portions of the United States wherein the Company
is conducting business on the Termination Date, or (ii) a business engaged in direct competition
with any other significant business carried on by the Company on the Termination Date. In no event
shall ownership of less than five (5) percent of the equity of a corporation, limited liability
company or other business entity, standing alone, constitute a violation hereof.
(b) Non-Solicitation. During the Restrictive Period, Executive shall not directly,
indirectly or through an affiliate: (i) solicit, induce, divert, or take away or attempt to
solicit, induce, divert or take away any customer, distributor, or supplier of the Company; (ii)
solicit, induce, or hire or attempt to solicit, induce, or hire any employee of the Company or any
individual who was an employee of the Company on the Termination Date and who has left the
employment of the Company after the Termination Date within one year of the termination of such
employee’s employment with the Company, or (iii) in any way directly or indirectly interfere with
such relationships.
(c) Confidentiality.
(i) Executive shall keep in strict confidence, and shall not, directly or indirectly, at any
time while employed by the Company or after ceasing to be so employed, disclose, furnish, publish,
disseminate, make available or, except in the course of performing his duties of employment
hereunder, use for his benefit or the benefit of others any Confidential Information. Executive
specifically acknowledges that all Confidential Information, in whatever media or form maintained,
and whether compiled by the Company or Executive, (1) derives independent economic value from not
being readily known to or ascertainable by proper means by others who can obtain economic value
from its disclosure or use, (2) that reasonable efforts have been made by the Company to maintain
the secrecy of such information, (3) that such information is the sole property of the Company, and
(4) that any disclosure or use of such information by Executive while employed by the Company
(except in the course of performing his duties and obligations hereunder for the Company) or after
ceasing to be so employed shall constitute a misappropriation of the Company’s trade secrets.
(ii) Notwithstanding the provisions of Section 6(c)(i), Executive may disclose the
Confidential Information to anyone outside of the Company with the Company’s express written
consent, or Confidential information that: (i) is at the time of receipt or thereafter becomes
publicly known through no wrongful act of Executive; or (ii) is received from a third party not
under an obligation to keep such information confidential and without breach of this Agreement.
(iii) In addition to the above provisions of Section 6(c), all memoranda, notes, lists,
records and other documents (and all copies thereof) made or compiled by Executive or made
available to Executive concerning the business of the Company will be delivered to the Company at
any time on request.
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7. Amendment to Management Retention Agreement. The parties hereby agree that Section
5(a) of the Management Retention Agreement is hereby amended in its entirety to provide as follows:
“(a) If Employee dies during the Contract Period, the Company shall
pay Employee’s designated beneficiary (or, in the event of the
decease of or failure to designate a beneficiary, Employee’s
personal representative) the base salary, provided for in paragraph
4(a) above for a 12-month period commencing thirty days (30) after
the date of death, but without prejudice to any payments otherwise
due Employee in respect of his death.”
8. Binding Agreement; Successors. This Agreement shall inure to the benefit of and be
binding upon Executive’s personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If Executive should die while any amounts would still
be payable to him hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive’s spouse, or if his spouse does not
survive him, to Executive’s estate. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the Company, including, without limitation, any person acquiring
directly or indirectly all or substantially all of the assets of the Company, whether by merger,
consolidation, sale or otherwise (and such successor shall thereafter be deemed the “Company” for
the purposes of this Agreement). The Company shall require any such successor to assume and agree
to perform this Agreement.
9. Notice. All notices, requests and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given (a) when hand delivered, (b) one business
day after being sent by recognized overnight delivery service, or (c) three business days after
being sent by registered or certified mail, return receipt requested, postage prepaid, and in each
case addressed as follows (or addressed as otherwise specified by notice under this Section):
(i) | If to the Company, to: | ||
Olympic Steel, Inc. 0000 Xxxxxxxx Xxxx Xxxxxxx, Xxxx 00000 Attention: Chief Executive Officer |
|||
With a copy to: Olympic Steel, Inc. 0000 Xxxxxxxx Xxxx Xxxxxxx, Xxxx 00000 Attention: Chairman, Compensation Committee |
|||
(ii) | If to Executive, to: | ||
Xxxxx X. Xxxxxxx 00 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxx, Xxxx 00000 |
10. Withholding. The Company may withhold from any amounts payable under or in
connection with this Agreement all federal, state, local and other taxes as may be required to be
withheld by the Company under applicable law or governmental regulation or ruling.
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11. Amendments; Waivers. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing, and is signed by
Executive and an officer of the Company specifically designated by the Board of the Company or its
Compensation Committee to execute such writing. No delay in exercising any right, power or
privilege hereunder shall operate as a waiver thereof. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent time.
12. Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Ohio, without giving effect to the conflict
of law principles of such State.
13. Equitable Relief. Executive and the Company acknowledge and agree that the
covenants contained in Section 6 are of a special nature and that any breach, violation or evasion
by Executive of the terms of Section 6 will result in immediate and irreparable injury and harm to
the Company, for which there is no adequate remedy at law, and will cause damage to the Company in
amounts difficult to ascertain. Accordingly, the Company shall be entitled to the remedy of
injunction, as well as to all other legal or equitable remedies to which the Company may be
entitled (including, without limitation, the right to seek monetary damages), for any breach,
violation or evasion by Executive of the terms of Section 6.
14. Validity. The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect. In the event that any provision of Section
6 is found by a court of competent jurisdiction to be invalid or unenforceable as against public
policy, such court shall exercise its discretion in reforming such provision to the end that
Executive shall be subject to such restrictions and obligations as are reasonable under the
circumstances and enforceable by the Company.
15. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall constitute one and the same
instrument.
16. Headings; Definitions. The headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this Agreement. Certain
capitalized terms used in this Agreement are defined on Schedule A attached hereto.
17. No Assignment. This Agreement may not be assigned by either party without the
prior written consent of the other party, except as provided in Section 8.
18. Entire Agreement; No Other Arrangements. This Agreement contains the entire
agreement between the parties with respect to the employment of Executive and supersedes any and
all other agreements, including, without limitation, the Prior Agreement, either oral or in
writing, with respect to the employment of Executive, with the exception of the Management
Retention Agreement, which shall remain in full force and effect. In the event of any conflict
between the Agreement and the Management Retention Agreement, the terms of the Management Retention
Agreement shall prevail other than with respect to Section 7 hereof. Executive acknowledges that,
in executing this Agreement, he has not relied on any representations not set forth in this
Agreement. Executive represents that his employment by the Company will not violate any other
agreement by which Executive is bound.
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19. Separation from Service. All references to “termination of employment” or forms
and derivations thereof shall refer to events which constitute a “separation from service” as
defined in Treasury Regulation §1.409A-1(h) and means the Executive’s separation from service with
the Company and all members of the controlled group, for any reason, including without limitation,
quit, discharge, or retirement, or a leave of absence (including military leave, sick leave, or
other bona fide leave of absence such as temporary employment by the government if the period of
such leave exceeds the greater of six months or the period for which the Executive’s right to
reemployment is provided either by statute or by contract). “Separation from service” also means
the permanent decrease in the Executive’s service for the Company and all controlled group members
to a level that is no more than 20% of its prior level. For this purpose, whether a “separation
from service” has occurred is determined based on whether it is reasonably anticipated that no
further services will be performed by the Executive after a certain date or that the level of bona
fide services the Executive will perform after such date (whether as an employee or as an
independent contractor) would permanently decrease to no more than 20% of the average level of bona
fide services performed (whether as an employee or an independent contractor) over the immediately
preceding 36-month period (or the full period of services if the Executive has been providing
services less than 36 months).
20. Six-Month Delay. Notwithstanding anything to the contrary contained in this
Agreement, and solely to the extent that any payment or benefit payable pursuant to this Agreement
is not exempt from the requirements of Section 409A, if the Executive is a “key employee” (as
defined under Code Section 416(i) without regard to paragraph (5) thereof) on the date of a
separation from service, and the Company’s stock is publicly traded on an established securities
market or otherwise, any such non-exempt payments under this Agreement which would otherwise have
been payable within the first six (6) months shall be paid in the seventh (7th) month following
Executive’s Termination Date. Notwithstanding the foregoing, payments delayed pursuant to this
paragraph shall commence as soon as practicable following the date of death of the Executive prior
to the end of the six (6) month period but in no event later than ninety (90) days following the
date of death.
21. Reimbursement and In-Kind Benefits. Any reimbursement of expenses or any in-kind
benefits provided under this Agreement, that are subject to and not exempt from Code Section 409A,
shall also be subject to the following additional rules: (i) any reimbursement of eligible expenses
or in-kind benefits shall be paid as they are incurred (but, solely to the extent not exempt from
Code Section 409A, not prior to the end of the six-month period following his termination of
employment); provided that in no event shall any such payment be made later than the end of the
calendar year following the calendar year in which such expense was incurred; (ii) the amount of
expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall
not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided,
during any other calendar year; and (iii) the right to reimbursement or in-kind benefits shall not
be subject to liquidation or exchange for another benefit.
22. Code Section 409A. It is intended that the payments and benefits provided under
this Agreement shall either be exempt from application of, or comply with, the requirements of Code
Section 409A and the final regulations thereunder. This Agreement shall be construed,
administered, and governed in a manner that effects such intent, and the Company shall not take any
action that would be inconsistent with such intent and shall make payments in such time and manner
as the Company determines would minimize or reduce the risk of adverse taxation under Code Section
409A. In the event that the Company reasonably determines that any compensation or benefits
payable under this Agreement may be subject to taxation under Code Section 409A, the Company, after
consultation with the Executive, shall have the authority
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to adopt, prospectively or retroactively, such amendments to this Agreement or to take any
other actions it determines necessary or appropriate to (a) exempt the compensation and benefits
payable under this Agreement from Code Section 409A or (b) comply with the requirements of Code
Section 409A. In no event, however, shall this section or any other provisions of this Agreement
be construed to require the Company to provide any gross-up for the tax consequences of any
provisions of, or payments under, this Agreement and the Company shall have no responsibility for
tax consequences to Executive (or his beneficiary) resulting from the terms or operation of this
Agreement. For purposes of Code Section 409A, any payments or benefits under this Agreement are
intended to constitute the right to a series of separate payments or benefits.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
OLYMPIC STEEL, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Chief Executive Officer |
/s/ Xxxxx X. Xxxxxxx | ||||
XXXXX X. XXXXXXX | ||||
(“Executive”) |
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SCHEDULE A
Certain Definitions
As used in this Agreement, the following capitalized terms shall have the following meanings:
“Affiliate” of a specified entity means an entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the entity specified.
“Affiliate” of a specified entity means an entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the entity specified.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Confidential Information” means confidential business information of the Company and its customers
and vendors, without limitation as to when or how Executive may have acquired such information.
Such Confidential Information shall include, without limitation, the Company’s sales figures,
profit or loss figures or other information related to the Company’s internal financial statements,
customers, clients, suppliers, vendors and product information, sources of supply, customer lists
or other information, selling and servicing methods and business techniques, product development
plans, sales and distribution information, business plans and opportunities, or corporate alliances
and other information concerning the Company’s actual or anticipated business or products, or which
is received in confidence by or for the Company from any other person.
“Disability” means the inability of Executive for a continuous period of ninety (90) days or for
one hundred and eighty (180) days in the aggregate during any twelve (12) month period to perform
any material portion of the duties of his position hereunder on an active full-time basis by reason
of a disability condition. The Company and Executive acknowledge and agree that the material
duties of Executive’s position are unique and critical to the Company and that a disability
condition that causes Executive to be unable to perform the essential functions of his position
under the circumstances described above will constitute an undue hardship on the Company.
Notwithstanding the foregoing, Executive shall not be disabled provided that all of the following
conditions have been satisfied:
(a) after receipt of the Company’s written notice of intent to terminate due to Disability,
Executive shall have the right within ten (10) days to dispute the Company’s ability to terminate
him under this section;
(b) within ten (10) days after exercising such right, Executive shall submit to a physical
exam by the Chief of Medicine of any major hospital in the metropolitan Cleveland area;
(c) such physician shall issue his written statement to the effect that in his opinion, based
upon his diagnosis, Executive is capable of resuming his employment and devoting his full time and
energy in discharging his duties within ten (10) days after the date of such statement; and
(d) the Executive returns to work on a full-time basis and devotes his energy in discharging
his duties.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder, as such law, rules and regulations may be amended from time to time.
“Good Cause” means a reasonable determination by the Board made in good faith (without the
participation of Executive) of the Company, pursuant to the exercise of its business judgment, that
anyone of the following events has occurred:
(a) Executive is found by the Board to have engaged in (1) willful misconduct, (ii) willful or
gross neglect, (iii) fraud, (iv) misappropriation, or (v) embezzlement in the performance of his
duties hereunder;
(b) Executive has materially breached the provisions of Section 6 or any other material
provision of this Agreement and fails to cure such breach within ten (l0) days following
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written notice from the Company specifying such breach which notice from the Company shall be
provided within thirty (30) days after said breach;
(c) Executive is found by the Board to have failed to provide reasonable cooperation with any
federal government or other governmental regulatory investigation, the reasonableness of such
cooperation to be determined by reference to statutory and regulatory authorities, Federal
Sentencing Guidelines, and relevant case law interpretations;
(d) Executive signs or certifies statements required to be made pursuant to Xxxxxxxx-Xxxxx
Sections 302 and 906, or other similar rules or regulations then in effect, which turn out to be
false or inaccurate in any material respect; provided, however, that the Board has made a
reasonable determination in good faith that the Executive knew or should have known that such
statements were false or inaccurate in any material respect;
(e) Executive has been indicted by a state or federal grand jury with respect to a felony, a
crime of moral turpitude or any crime involving the Company (other than pursuant to actions taken
at the direction or with the approval of the Board) and a special committee of the Board, chaired
by an outside director appointed by the Chair of the Audit Committee, considers the matter, makes a
recommendation to the Board to terminate Executive’s employment for Good Cause, and the Board
concurs in that recommendation; or
(f) Executive is found by the Board to have engaged in a material violation of the Code of
Conduct of the Company as then in effect.
“Release and Waiver of Claims” means a written release and waiver by Executive, to the fullest
extent allowable under applicable law and in form reasonably acceptable to the Company, of all
claims, demands, suits, actions, causes of action, damages and rights against the Company and its
Affiliates whatsoever which he may have had on account of the termination of his employment,
including, without limitation, claims of discrimination, including on the basis of sex, race, age,
national origin, religion, or handicapped status, and any and all claims, demands and causes of
action for severance or other termination pay. Such Release and Waiver of Claims shall not,
however, apply to the obligations of the Company arising under this Agreement, any indemnification
agreement between Executive and the Company, any retirement plans, any stock option agreements,
COBRA Continuation Coverage or rights of indemnification Executive may have under the Company’s
Articles of Incorporation or Code of Regulations (or comparable charter document) or by statute.
“Xxxxxxxx-Xxxxx” means the Xxxxxxxx-Xxxxx Act of 2002.
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