Exhibit 10.2
EXECUTION COPY
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT,
dated as of May 23, 2008 (the “ Agreement
”), by and among Aleris International, Inc. (the “
Company ”), Aurora Acquisition Holdings, Inc. (the
“ Parent ”) and John J. Wasz (the “
Executive ”).
WHEREAS, the Company and the
Executive entered into an Employment Agreement dated as of
December 19, 2006 where the Company employed the Executive as
the Company’s Executive Vice President and President, Rolled
Products – North America;
WHEREAS, the Company and the
Executive now desire to change the terms of the Employment
Agreement so that the Executive will assume the position of Special
Advisor to the Chief Executive Officer;
NOW, THEREFORE, in consideration of
the premises and mutual covenants herein and for other good and
valuable consideration, the parties agree as follows:
1. Employment, Duties and
Agreements .
(a) The Company hereby agrees to
employ the Executive as a Special Advisor to the Chief Executive
Officer of the Company and the Executive hereby accepts such
position and agrees to continue to serve the Company in such
capacity during the employment period fixed by Section 3
hereof (the “ Employment Period ”). For the
avoidance of doubt, from the date hereof until June 1, 2008,
the Executive shall continue to exercise his present duties as
Executive Vice President and President, Rolled Products North
America. The Executive shall have such duties and responsibilities
as may be assigned by the Chief Executive Officer of the Company
from time to time, and will include, without limitation, special
projects concerning the rolled products industry in North America
and assistance with sales and customer relations in the rolled
products business of the Company. During the Employment Period, the
Executive shall be subject to, and shall act in accordance with,
all reasonable instructions and directions and all applicable
policies and rules of the Company.
(b) In connection with the
Executive’s employment by the Company under this Agreement,
the Executive may work primarily from his residence in the
Louisville, Kentucky area, except for such travel as the
performance of the Executive’s duties may require.
(c) The Severance Agreement, dated
as of August 30, 2005, by and between the Company and the
Executive (the “ Severance Agreement ”) is
hereby mutually terminated and of no further force and effect and
the Executive hereby relinquishes and waives any and all rights
thereunder.
2. Compensation .
(a) As compensation for the
agreements made by the Executive herein and the performance by the
Executive of his obligations hereunder, during the Employment
Period, the Company shall pay the Executive, pursuant to the
Company’s normal and customary payroll procedures, a base
salary at the rate of $400,000 per annum, (the “ Base
Salary ”). The Base Salary will not be adjusted during
the Employment Term
(b) In addition to the Base Salary,
during the fiscal year ending December 31, 2008 only, , the
Executive shall be eligible to participate in the annual incentive
plan (the “ AIP ”) established and approved by
the Board and, pursuant to the AIP, the Executive may earn an
annual bonus (the “ Annual Bonus ”) in such
fiscal year, with a target Annual Bonus of 75% of Base Salary (the
“Target Bonus”) up to a maximum of 150% of Base Salary,
based on the achievement of annual performance objectives as set
forth in the AIP, subject to the Executive’s employment with
the Company through the applicable payment date for any such Annual
Bonus. For purposes of the calculation of any such Annual Bonus
award for fiscal year 2008, the Executive shall participate in the
AIP as if he were a member of the Rolled Products North America
business unit. The Executive agrees that he shall not be eligible
for participation in, and will not earn an Annual Bonus under the
AIP in the fiscal year ending December 31, 2009.
(c) The Company and the Executive
shall amend and revise the Option agreements between them to
provide that: (i) the Executive shall only vest in the
Time-Based Options previously granted to the Executive through
December 31, 2008, and any Time-Based Options that have not
vested as of such date shall be forfeited on that date;
(ii) the Executive hereby forfeits and releases any and all
rights in the Performance Based Options previously granted to the
Executive and agrees to so amend his option agreements.
(d) Any Options that have become
vested and exercisable as of (or that become exercisable as a
result of) the Date of Termination shall expire on the earlier of
(i) one year after the Scheduled Termination Date;
(ii) one year after the date the Executive’s employment
is terminated for any reason other than Cause, death or Disability;
(ii) one year after the date the Executive’s employment
is terminated by reason of death or Disability; (iii) the
commencement of business on the date the Executive’s
employment is terminated for Cause; or (iv) the tenth
anniversary of the grant date. All Options that are outstanding as
of the tenth anniversary of the grant date will expire on such
date. The Executive shall be permitted to exercise the vested
portion of the Options through net-physical settlement (i.e., by
delivery of Shares net of the number of Shares having a value equal
to the applicable exercise price and applicable withholding taxes
at the minimum statutory rate) if such exercise occurs after
termination of the Executive’s employment pursuant to
Sections 3(a) or 3(b), by the Company pursuant to Paragraph
3(d).
(e) During the Employment Period:
(i) except as provided in the last sentence of this
Section 2(f), the Executive and/or the Executive’s
family, as the case may be, shall be entitled to participate in all
employee benefit plans, practices, policies, programs
and
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arrangements of the Company which are made
available generally to other executive officers of the Company
and/or their families, as the case may be, including, without
limiting the Company’s right to terminate, modify or amend
such plans in accordance with their terms or as provided in the
immediately succeeding sentence, the Company’s benefits
restoration program, life insurance, long-term disability and
health plans and (ii) the Executive shall be entitled to the
perquisites and other fringe benefits that are made available by
the Company to its senior executives generally, subject to any
applicable terms and conditions of any specific perquisite or other
fringe benefit.
(f) The Company shall reimburse the
Executive for all reasonable business expenses upon the
presentation of statements of such expenses in accordance with the
Company’s policies and procedures now in force or as such
policies and procedures may be modified with respect to all senior
executive officers of the Company.
3. Employment Period
.
The Employment Period shall commence
on June 1, 2008 and shall terminate on December 31, 2009
(the “Scheduled Termination Date”). Notwithstanding the
foregoing, the Executive’s employment hereunder may be
terminated during the Employment Period prior to the Scheduled
Termination Date upon the earliest to occur of any one of the
following events (at which time the Employment Period shall be
terminated):
(a) Death. The Executive’s
employment hereunder shall terminate upon his death.
(b) Disability. The Company shall be
entitled to terminate the Executive’s employment hereunder
for “ Disability ” if, as a result of the
Executive’s incapacity due to physical or mental illness or
injury, the Executive (i) shall become eligible to receive a
benefit under the Company’s long-term disability plan
applicable to the Executive, or (ii) if no such long-term
disability plan is applicable to the Executive, the Executive shall
have been unable to perform his duties hereunder for a period of
ninety (90) consecutive days or a period of ninety
(90) days in any one hundred eighty (180) day
period.
(c) Cause. The Company may terminate
the Executive’s employment hereunder for Cause. For purposes
of this Agreement, the term “ Cause ” shall
mean: (i) a material breach by the Executive of this
Agreement; (ii) other than as a result of physical or mental
illness or injury, the willful and continued failure of the
Executive to perform substantially the Executive’s duties
with the Company or one of its affiliates; (iii) the
Executive’s willful and continued misconduct or gross
negligence which is materially injurious to the Company or an
affiliate of the Company; or (iv) the indictment by the
Executive of, or a plea by the Executive of nolo contendere to, a
felony involving moral turpitude or other serious crime involving
moral turpitude. In the case of clauses (i) and
(ii) above, the Company shall provide notice to the Executive
indicating in reasonable detail the events or circumstances that it
believes constitute Cause hereunder and, if such breach or failure
is reasonably susceptible to
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cure, provide the Executive with a reasonable
period of time (not to exceed thirty (30) days) to cure such
breach or failure. If, subsequent to the Executive’s
termination of employment hereunder for other than Cause, it is
determined in good faith by the Board that the Executive’s
employment could have been terminated for Cause pursuant to clause
(iv) of this Section 3(c), the Executive’s
employment shall, at the election of the Board, be deemed to have
been terminated for Cause retroactively to the date the events
giving rise to Cause occurred.
(d) Without Cause. The Company may
terminate the Executive’s employment hereunder during the
Employment Period without Cause.
(e) Voluntarily. The Executive may
voluntarily terminate his employment hereunder, provided that the
Executive provides the Company with notice of his intent to
terminate his employment at least 60 days in advance of the Date of
Termination (as defined in Section 4(b) below).
4. Termination Procedure
.
(a) Notice of Termination. Any
termination of the Executive’s employment by the Company or
by the Executive during the Employment Period (other than a
termination on account of the death of the Executive) shall be
communicated by written “ Notice of Termination
” to the other party hereto in accordance with
Section 10(a).
(b) Date of Termination. “
Date of Termination ” shall mean (i) if the
Executive’s employment is terminated by his death, the date
of his death, (ii) if the Executive’s employment is
terminated pursuant to Section 3(b), on the date the Executive
receives Notice of Termination from the Company, (iii) if the
Executive voluntarily terminates his employment , the date
specified in the notice given pursuant to Section 3(e) herein
which shall not be less than 90 days after the Notice of
Termination, and (iv) if the Executive’s employment is
terminated for any other reason, the date on which a Notice of
Termination is given or any later date (within thirty
(30) days, or any alternative time period agreed upon by the
parties, after the giving of such notice) set forth in such Notice
of Termination.
5. Termination Payments
.
(a) Without Cause. In the event the
Employment Period terminates under this Agreement as a result of
the Company terminating the Executive without Cause the Executive
shall be entitled to the payments and benefits set forth in this
Section 5(a):
(i) If the Executive’s
employment is terminated prior to the Scheduled Termination Date,
the Company shall pay the Executive (A) within thirty
(30) days following the Date of Terminat
