EXHIBIT 10.2(d)-1
,
200
Dear
:
Ryerson Inc. (“RYERSON”)
considers it essential to the best interests of its stockholders to
foster the continuous employment of key management personnel of
RYERSON and its subsidiaries (collectively, the
“Company”). In this connection, the Board of Directors
of RYERSON (the “Board”) recognizes that, as is the
case with many publicly held corporations, the possibility of a
change in control may exist and that such possibility, and the
uncertainty and questions which it may raise among management, may
result in the departure or distraction of management personnel to
the detriment of RYERSON and its stockholders.
The Board has determined that
appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of members of the
Company’s management, including yourself, to their assigned
duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a change in control
of the Company. In order to induce you to remain in the employ of
the Company and in consideration of your agreement set forth in
Subsection 2(ii) hereof, RYERSON agrees that you shall receive the
severance benefits set forth in this letter agreement
(“Agreement”) in the event your employment with the
Company is terminated subsequent to a “change in control of
the Company” (as defined in Section 2 hereof) or in
connection with a “potential change in control of the
Company” (as defined in Section 2 hereof) under the
circumstances described below. This Agreement shall constitute an
amendment and restatement of and shall supersede any prior
agreement entered into between you and RYERSON with respect to
these matters. In the event that you receive severance benefits
hereunder, such benefits shall be in lieu of, and you shall not be
entitled to receive, any benefits or payments under any other
severance plan or policy of the Company or any agreement with the
Company and the provisions of Section 5 through 7 hereof shall
supercede any provisions relating to comparable matters under such
other severance plan or policy or such other agreement. In
addition, if you are or become entitled to benefits from the
Company pursuant to another agreement providing for benefits on
account of a change in control or the law of a jurisdiction other
than the United States or any state or territory thereof as a
result of an event for which benefits are payable to you pursuant
this Agreement, the benefits paid to you pursuant to this Agreement
shall be reduced by the amount paid to you pursuant to such other
agreement or law.
1. Term of Agreement . This
Agreement shall commence on the date hereof and shall continue in
effect until the first anniversary of the date on which RYERSON
gives you a written notice of termination of the Agreement.
Notwithstanding the preceding sentence: (i) if your employer
is a direct or indirect subsidiary of RYERSON, this Agreement shall
terminate on the date on which RYERSON ceases to own, directly or
indirectly, at least 80 percent of your employer for any reason
which does not constitute a change in control of the Company, and
(ii) if a change in control of the Company or a potential
change in control of the Company shall have occurred during the
original or extended term of this Agreement, this Agreement shall
continue in effect for a period of thirty-six (36) months
beyond the month in which such change in control of the Company or
potential change in control of the Company occurred unless earlier
terminated under clause (i) next above.
2. Change in Control; Potential
Change in Control . Benefits shall not be payable hereunder
unless there shall have been a potential change in control of the
Company or a change in control of the Company, as set forth below,
or in the event your employment is terminated at the request of any
person as part of or in connection with a proposed transaction that
could constitute a potential change in control of the Company or a
change in control of the Company and there subsequently occurs a
potential change in control of the Company or change in control of
the Company within 12 months of such termination.
(i) For purposes of this Agreement,
a “change in control of the Company” shall be deemed to
have occurred if:
(A) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)),
other than (w) the Company, (x) a trustee or other
fiduciary holding voting securities under an employee benefit plan
of the Company, (y) an underwriter temporarily holding voting
securities pursuant to an offering of such securities, or
(z) a corporation owned, directly or indirectly, by the
security holders of RYERSON in substantially the same proportions
as their ownership of voting securities of RYERSON, is or becomes
the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of voting securities of
RYERSON (not including in the voting securities beneficially owned
by such person any voting securities acquired directly from RYERSON
or its affiliates) representing 20% or more of the combined voting
power of RYERSON’s then outstanding voting
securities;
(B) during any period of two
consecutive years (not including any period prior to the execution
of this Agreement), individuals who at the beginning of such period
constitute the Board and any new director whose election by the
Board or nomination for election by RYERSON’s security
holders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved (“Continuing
Directors”), cease for any reason to constitute a majority
thereof, provided, however, that no director designated by a person
who has entered into an agreement with the Company to effect a
transaction described in clauses (A), (C) or (D) of this
Section 2(i) shall be deemed a Continuing Director for the
purposes of this clause (B) and, provided, further that if any
new director assumes office in connection with or as a
result
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of an actual or threatened proxy or
other election contest of the Board, then the nomination or
election of such new director shall not constitute, or be deemed to
constitute, an approval by the Continuing Directors for purposes of
this Section 2(i)(B);
(C) there occurs a merger or
consolidation of RYERSON with any other corporation, other than a
merger or consolidation which would result in the voting securities
of RYERSON outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity), in combination
with the ownership of any trustee or other fiduciary holding voting
securities under an employee benefit plan of the Company, at least
60% of the combined voting power of the voting securities of
RYERSON or such surviving entity outstanding immediately after such
merger or consolidation, or a merger or consolidation effected to
implement a recapitalization of RYERSON (or similar transaction) in
which no person acquires more than 50% of the combined voting power
of RYERSON’s then outstanding voting securities;
(D) the holders of voting securities
of RYERSON approve a plan of complete liquidation of RYERSON or an
agreement for the sale or disposition by RYERSON of all or
substantially all of RYERSON’s assets; or
(E) there occurs:
(x) a sale or disposition, directly
or indirectly, other than to a person described in subclause (w),
(x) or (z) of clause (A) of this Subsection 2(i), of
voting securities of your employer, any direct or indirect parent
company of your employer or any company that is a subsidiary of
your employer and is also a significant subsidiary (as defined
below) of RYERSON (your employer and such a parent or subsidiary
being a “Related Company”), representing 50% or more of
the combined voting power of the securities of such Related Company
then outstanding;
(y) a merger or consolidation of a
Related Company with any other corporation, other than:
(1) a merger or consolidation which
would result in the voting securities of the Related Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity), in combination with the
ownership of any trustee or other fiduciary holding voting
securities under an employee benefit plan of the Company, at least
60% of the combined voting power of the voting securities of the
Related Company or such surviving entity outstanding immediately
after such merger or consolidation;
(2) a merger or consolidation
effected to implement a recapitalization of the Related Company (or
similar transaction) in which no person acquires more than 50% of
the combined voting power of the Related Company’s then
outstanding voting securities; or
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(3) a merger or consolidation which
would result in 50% or more of the combined voting power of the
surviving company being beneficially owned by RYERSON or by a
majority owned direct or indirect subsidiary of RYERSON;
or
(z) the sale or disposition of all
or substantially all the assets of a Related Company to a person
other than RYERSON or a majority owned direct or indirect
subsidiary of RYERSON.
Notwithstanding any other provision
of this Agreement, no change in control of the Company shall be
deemed to have occurred under this Subsection 2(i) if (I) such
transaction includes or involves a sale to the public or a
distribution to the stockholders of RYERSON of more than 50% of the
voting securities of your employer or a direct or indirect parent
of your employer, and (II) your employer or a direct or indirect
parent of your employer agrees to become a successor to RYERSON
under this Agreement or you are covered by an agreement providing
for benefits upon a change in control of your employer following an
event described in clause (E) of this Subsection 2(i). For
purposes of this Agreement, the term “significant
subsidiary” has the meaning given to such term under Rule 405
of the Securities Act of 1933, as amended.
(ii) For purposes of this Agreement,
a “potential change in control of the Company” shall be
deemed to have occurred if:
(A) RYERSON enters into an
agreement, the consummation of which would result in the occurrence
of a change in control of the Company;
(B) any person (including RYERSON)
publicly announces an intention to take or to consider taking
actions which if consummated would constitute a change in control
of the Company;
(C) any person, other than
(w) the Company, (x) a trustee or other fiduciary holding
voting securities under an employee benefit plan of the Company,
(y) an underwriter temporarily holding voting securities
pursuant to an offering of such securities, or (z) a
corporation owned, directly or indirectly, by the security holders
of RYERSON in substantially the same proportions as their ownership
of voting securities of RYERSON, who is or becomes the beneficial
owner, directly or indirectly, of voting securities of RYERSON
representing 9.5% or more of the combined voting power of
RYERSON’s then outstanding voting securities, increases his
beneficial ownership of such securities by 5% or more over the
percentage so owned by such person on the date hereof;
or
(D) the Board adopts a resolution to
the effect that, for purposes of this Agreement, a potential change
in control of the Company has occurred.
You agree that, subject to the terms
and conditions of this Agreement, in the event of a potential
change in control of the Company, you will remain in the employ of
the Company until the
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earliest of (i) a date which is six
(6) months from the occurrence of such potential change in
control of the Company, (ii) the termination by you of your
employment by reason of Disability or Retirement, as defined in
Subsection 3(i), or (iii) the occurrence of a change in
control of the Company. If your employment is terminated by the
Company without Cause (as defined in Subsection 3(ii) below)
coincident with or prior to a change in control of the Company and
within twelve (12) months after the occurrence of a potential
change in control of the Company and a change in control of the
Company occurs within six (6) months after such termination,
you shall be entitled to the compensation and benefits hereunder as
if your termination of employment without Cause followed a change
in control of the Company; provided, however, that no benefits
shall be payable under this sentence if prior to the change in
control of the Company, RYERSON ceased to own, directly or
indirectly, at least 80% of the voting securities of your
employer.
(iii) The foregoing to the contrary
notwithstanding, a change in control of the Company shall not be
deemed to have occurred with respect to you if:
(A) the event first giving rise to
the potential change in control of the Company involves a publicly
announced transaction or publicly announced proposed transaction
which at the time of the announcement has not been previously
approved by the Board and you are “part of a purchasing
group” (as defined below) proposing the
transaction;
(B) you are part of a purchasing
group which consummates the change in control transaction;
or
(C) the change in control of the
Company would otherwise occur under Subsection 2(i)(D) due to the
sale of a significant subsidiary, which significant subsidiary
constitutes all or substantially all of the assets of RYERSON and
you are not employed by RYERSON or the significant subsidiary which
is the subject of the transaction.
For purposes of this Agreement, you
shall be deemed “part of a purchasing group” if you are
an equity participant or have agreed to become an equity
participant in the purchasing company or group (except for
(A) passive ownership of less than 1% of the stock of the
purchasing company or (B) ownership of equity participation in
the purchasing company or group which is otherwise not deemed to be
significant, as determined prior to the change in control of the
Company by a majority of the non-employee Continuing
Directors).
3. Termination Following Change
in Control . You shall be entitled to the benefits provided in
Subsection 4(iii) hereof in the event (A) a change in control
of the Company or potential change in control of the Company, each
as defined in Section 2 hereof, shall have occurred, and your
employment is subsequently terminated during the term of this
Agreement or (B) your employment is terminated during the term
of this Agreement prior to a change in control of the Company or
potential change in control of the Company at the request of any
person as part of or in connection with a proposed transaction that
could constitute a potential change in control of the Company or a
change in control of the Company, provided that there occurs either
a change in control of the Company or potential change in control
of the Company within 12 months following such termination, unless,
in the case of either (A) or (B) such termination is
(x) because of your death, Disability or Retirement,
(y) by the Company for Cause, or (z) by you other than
for Good Reason.
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(i) Disability; Retirement .
If, as a result of your incapacity due to physical or mental
illness, you shall have been absent from the full-time performance
of your duties with the Company for six (6) consecutive
months, and within thirty (30) days after written notice of
termination is given you shall not have returned to the full-time
performance of your duties, your employment may be terminated for
“Disability”. Termination by the Company or you of your
employment based on “Retirement” shall mean termination
on or after your normal retirement age in accordance with the
Company’s retirement policy generally applicable to its
salaried employees or in accordance with any retirement arrangement
established with your consent with respect to you.
(ii) Cause . Termination by
the Company of your employment for “Cause” shall mean
termination upon (A) the willful and continued failure by you
to substantially perform your duties with the Company (other than
any such failure resulting from your incapacity due to physical or
mental illness or any such actual or anticipated failure after the
issuance of a Notice of Termination by you for Good Reason as
defined in Subsections 3(iv) and 3(iii), respectively) after a
written demand for substantial performance is delivered to you by
the Board, which demand specifically identifies the manner in which
the Board believes that you have not substantially performed your
duties, or (B) the willful engaging by you in conduct which is
demonstrably and materially injurious to the Company, monetarily or
otherwise. For purposes of this Subsection 3(ii), no act, or
failure to act, on your part shall be deemed “willful”
unless done, or omitted to be done, by you not in good faith and
without reasonable belief that your action or omission was in the
best interest of the Company. Notwithstanding the foregoing, you
shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to you a copy of a resolution
duly adopted by the affirmative vote of not less than
three-quarters (3/4) of the entire membership of the Board at
a meeting of the Board called and held for such purpose (after
reasonable notice to you and an opportunity for you, together with
your counsel, to be heard before the Board), finding that in the
good faith opinion of the Board you were guilty of conduct set
forth above in clauses (A) or (B) of the first sentence
of this Subsection 3(ii) and specifying the particulars thereof in
detail; provided that, in the event of a dispute concerning the
application of this provision, no claim by the Company that Cause
exists shall be given effect unless the Company establishes to the
Board by clear and convincing evidence that Cause
exists.
(iii) Good Reason . You shall
be entitled to terminate your employment for Good Reason. For
purposes of this Agreement, “Good Reason” shall mean,
without your express written consent, the occurrence after a change
in control of the Company of any of the following circumstances
unless, in the case of paragraphs (A), (E), (F), (G) or (H),
such circumstances are fully corrected prior to the Date of
Termination specified in the Notice of Termination, as defined in
Subsections 3(v) and 3(iv), respectively, given in respect
thereof:
(A) the assignment to you of any
duties materially inconsistent with your status as an executive
officer of the Company or a substantial adverse alteration in the
nature or status of your responsibilities from those in effect
immediately prior to the change in control of the Company other
than any such alteration primarily attributable to the fact that
the Company may no longer be a public company;
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(B) a reduction by the Company in
your annual base salary as in effect on the date hereof or as the
same may be increased from time to time;
(C) the Company’s requiring
that your principal place of business be at an office located more
than 50 miles from where your principal place of business is
located immediately prior to the change in control of the Company,
except for required travel on the Company’s business to an
extent substantially consistent with your business travel
obligations immediately prior to the change in control of the
Company;
(D) the failure by the Company,
without your consent, to pay to you any portion of your current
compensation, or to pay to you any portion of an installment of
deferred compensation under any deferred compensation program of
the Company, within seven (7) days of the date such
compensation is due;
(E) the failure by the Company to
continue in effect any compensation plan in which you participate
immediately prior to the change in control of the Company which is
material to your total compensation, including but not limited to
the Ryerson Annual Incentive Plan (the “Annual Incentive
Plan”), Ryerson 2002 Incentive Stock Plan and any successor
thereto (collectively, the “Incentive Stock Plans”),
Ryerson Nonqualified Savings Plan (the “Nonqualified Savings
Plan”), or the Ryerson Savings Plan (the “Savings
Plan”) or any substitute or alternative plans adopted prior
to the change in control of the Company, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan)
has been made with respect to such plan, or the failure by the
Company to continue your participation therein (or in such
substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided and the
level of your participation relative to other participants, as
existed at the time of the change in control of the
Company;
(F) the failure by the Company to
continue to provide you with benefits substantially similar to
those enjoyed by you under any of the Company’s defined
contribution plan, life insurance, medical, dental, or short-term
and long term disability plans or programs in which you were
participating at the time of the change in control of the Company,
the taking of any action by the Company which would directly or
indirectly materially reduce any of such benefits or deprive you of
any material fringe benefit enjoyed by you at the time of the
change in control of the Company, or the failure by the Company to
provide you with the number of paid vacation days to which you are
entitled on the basis of years of service with the Company in
accordance with the Company’s normal vacation policy in
effect at the time of the change in control of the
Company;
(G) the failure of RYERSON to obtain
a satisfactory agreement from any successor to assume and agree to
perform this Agreement, as contemplated in Section 5 hereof;
[or]
(H) any purported termination of
your employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Subsection 3(iv) below
(and, if applicable, the requirements of Subsection 3(ii) above);
for purposes of this Agreement, no such purported termination shall
be effective.[; or]]
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(I) [ applicable only to CEO:
a change to your employment position, such that you no longer serve
as the chief executive officer of a publicly held
company.]
Your right to terminate your
employment pursuant to this Section 3 shall not be affected by
your incapacity due to physical or mental illness. Your continued
employment shall not constitute consent to, or a waiver of rights
with respect to, any circumstance constituting Good Reason
hereunder. For purposes of any determination regarding the
existence of Good Reason, any claim by you that Good Reason exists
shall be presumed to be correct unless the Company establishes to
the Board by clear and convincing evidence that Good Reason does
not exist.
(iv) Notice of Termination .
Any purported termination of your employment by the Company or by
you shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 6 hereof. For
purposes of this Agreement, a “Notice of Termination”
shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of your employment under the provision so
indicated.
(v) Date of Termination, Etc.
“Date of Termination” shall mean (A) if your
employment is terminated for Disability, thirty (30) days
after Notice of Termination is given (provided that you shall not
have returned to the full-time performance of your duties during
such thirty (30) day period), and (B) if your employment
is terminated pursuant to Subsection 3(ii) or 3(iii) above or for
any other reason (other than Disability), the date specified in the
Notice of Termination (which, in the case of a termination pursuant
to Subsection 3(ii) above shall not be less than thirty
(30) days, and in the case of a termination pursuant to
Subsection 3(iii) above shall not be less than fifteen
(15) nor more than sixty (60) days, respectively, from
the date such Notice of Termination is given); provided that if
within fifteen (15) days after any Notice of Termination is
given, or, if later, prior to the Date of Termination (as
determined without regard to this proviso), the party receiving
such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall be
the date on which the dispute is finally determined, either by
mutual written agreement of the parties, by a binding arbitration
award, or by a final judgment, order or decree of a court of
competent jurisdiction (which is not appealable or with respect to
which the time for appeal therefrom has expired and no appeal has
been perfected) but shall be deemed to be within the thirty-six
(36) month period following a change in control of the
Company; provided further that the Date of Termination shall be
extended by a notice of dispute only if such notice is given in
good faith and the party giving such notice pursues the resolution
of such dispute with reasonable diligence. Notwithstanding the
pendency of any such dispute, the Company will continue to pay you
your full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and
continue you as a participant in all compensation, benefit and
insurance plans and programs in which you were participating when
the notice giving rise to the dispute was given, until the dispute
is finally resolved in accordance with this Subsection 3(v).
Amounts paid under this Subsection 3(v) are in addition to all
other amounts due under this Agreement and shall not be offset
against or reduce any other amounts due under this
Agreement.
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4. Compensation Upon Termination
or During Disability . Following a change in control of the
Company or potential change in control of the Company, each as
defined in Section 2 hereof, upon termination of your
employment or during a period of Disability, or in the event your
employment is terminated prior to a change in control of the
Company or potential change in control of the Company at the
request of any person as part of or in connection with a proposed
transaction that could constitute a potential change in control of
the Company or a change in control of the Company, provided that
there occurs either a change in control of the Company or potential
change in control of the Company within 12 months following such
termination, you shall be entitled to the following
benefits:
(i) During any period that you fail
to perform your full-time duties with the Company as a result of
incapacity due to physical or mental
