EMPLOYMENT AGREEMENTEmployee Retention Agreement |
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Exhibit 10.1
EXECUTION COPY
EMPLOYMENT AGREEMENT
This employment agreement (the Agreement), is entered by and among Aleris Switzerland GmbH (the Company and Roeland Baan (the Executive).
WHEREAS, the Company desires that the Executive serve the Company as the Companys Executive Vice President, and President, Aleris Europe, on the terms and conditions set forth herein.
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 its Executive Vice President, and President, Aleris Europe, and the Executive hereby accepts such position and agrees to serve the Company in such capacity during the term of employment (the Employment Period). The Executive shall report to the Chief Executive Officer (CEO) of Aleris International Inc. (Aleris) and shall have such duties and responsibilities as are consistent with the Executives position and as may be assigned by the Company and the CEO from time to time. 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, Aleris Europe and Aleris.
(b) During the Employment Period, excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive shall devote his full working time, energy and attention to the performance of his duties and responsibilities hereunder and shall faithfully and diligently endeavor to promote the business and best interests of the Company, Aleris Europe and Aleris. During the Employment Period, the Executive may not, without the prior written consent of Aleris, directly or indirectly, operate, participate in the management, operations or control of, or act as an executive, officer, consultant, agent or representative of, any type of business or service (other than as an executive of the Company and Aleris). It shall not, however, be a violation of the foregoing provisions of this Section 1(b) for the Executive to (i) subject to the approval of the Board, serve as an officer or director or otherwise participate in profit, non-profit, educational, welfare, social, religious and civil organizations, or (ii) manage his personal, financial and legal affairs, so long as any such activities in (i) and (ii) do not interfere with the performance of his duties and responsibilities to the Company and Aleris as provided hereunder.
(c) In connection with the Executives employment by the Company under this Agreement, the Executive shall be based at the principal executive offices of the Company, currently located in Schaffhausen, Switzerland, except for such travel as the performance of the Executives duties in the business of the Company and Aleris may require.
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 Companys normal and customary payroll procedures, a base salary at the rate of 600,000 per annum, (the Base Salary) payable in twelve equal installments at the end of each calendar month. Potential Christmas payment and vacation payments are compensated with the total remuneration. The base salary also compensates for any activities of Executive outside the usual service hours.
(b) During the Employment Term, the Base Salary will be reviewed annually and is subject to adjustment at the discretion of the Board of Directors of the Company (the Board) in consultation with the Board of Directors of Aleris (the Aleris Board), but in no event shall the Company pay the Executive a Base Salary less than that set forth above.
(c) In addition to the Base Salary, during the Employment Period, the Executive shall be eligible to participate in the Amended and Restated Aleris International, Inc. 2004 Annual Incentive Plan (the MIP), and, pursuant to the MIP, the Executive may earn an annual bonus (the Annual Bonus) in each fiscal year during the Employment Period, with a target Annual Bonus of 75% of Base Salary up to a maximum of 150% of Base Salary, based on the achievement of annual performance objectives as set forth in the MIP, subject to the Executives employment with the Company through the applicable payment date for any such Annual Bonus (unless otherwise provided herein); provided, however, a portion of Executives Annual Bonus for 2008 shall be guaranteed and fixed at 225,000 which will be awarded as soon as practicable in the form of a grant of 3,534 restricted shares of the common stock, par value $0.01 per share, of Aurora Acquisition Holdings, Inc. (Holdings) and vesting ratably in the two years following the Effective Date, as defined below.
(d) During the Employment Period: (i) except as provided in the last sentence of this Section 2(c), the Executive and/or the Executives family, as the case may be, shall be entitled to participate in all employee benefit plans, practices, policies, programs and 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 Companys right to terminate, modify or amend such plans in accordance with their terms or as provided in the immediately succeeding sentence 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, subject to any applicable terms and conditions of any specific perquisite or other fringe benefit.
(e) Executive will be provided with a leased automobile on the same terms as were provided to Sean Stack, formerly President of Aleris Europe. Executive may use the company car for his private purposes. The right to the private use of the car shall expire without compensation upon the termination of this agreement. In such case, Executive shall immediately return the company car to the Companys seat in its proper condition and with all documents and keys. Any rights of retention are excluded.
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(f) The Executive shall have his place of employment in Neuhaussen, Switzerland and shall relocate his personal residence to Neuhaussen, Switzerland, or within a reasonable commuting distance not further than 75 kilometers from Neuhaussen, Switzerland. The Company will provide a relocation allowance that is typical for executives relocating within the Europe region, with reference to customary relocation allowances in the market.
(g) Executive will be entitled to annual vacation of 30 working days. Executive shall schedule his vacation in consultation with the CEO. The Companys policy shall apply.
(h) The Company shall reimburse the Executive for all reasonable business expenses upon the presentation of statements of such expenses in accordance with the Companys policies and procedures now in force or as such policies and procedures may be modified with respect to other senior executives of the Company.
(i) In the event the Company or the Parent engages in a significant subsequent corporate transaction with another entity, the Board will reconsider the size of the equity pool, taking into account the larger size of the resultant entity and taking into account all relevant circumstances, including competitive market data for companies of similar size and circumstance.
(j) The Company will make a retirement contribution into an appropriate retirement plan in an amount equal to 25% of Executives Base Salary each year. The Company and Executive will determine together whether the contribution can be made to an existing program available for employees of the Company or whether a new arrangement will need to be established.
3. Employment Period.
The Employment Period shall commence on April 7, 2008 (the Effective Date) and shall terminate upon notice by either party as set forth herein.
(a) Death. The Executives employment hereunder shall terminate upon his death.
(b) Disability. The Company shall be entitled to terminate the Executives employment hereunder for Disability if, as a result of the Executives incapacity due to physical or mental illness or injury, the Executive (i) shall become eligible to receive a benefit under the Companys 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) Important Cause. The Company may terminate the Executives employment hereunder with immediate effect for Important Cause within the meaning of article 337 of the Swiss Code of Obligations (CO). The term Important Cause shall include: (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 Executives duties with the Company or one of its
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affiliates; (iii) the Executives 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 misbehavior or crime involving moral turpitude.
(d) Without Cause. The Company and the Executive may each terminate the Executives employment hereunder during the Employment Period without cause by giving written advance notice of two months to the other party. Such advance notice shall either be hand-delivered against receipt or be sent by registered mail or courier against certificate of receipt.
4. Termination Procedure.
(a) Notice of Termination. Any termination of the Executives employment by the Company or by the Executive during the Employment Period shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 11(a).
(b) Date of Termination. Date of Termination shall mean the date on which, following a Notice of Termination, the Employment Period ends.
5. Termination Payments.
(a) Without Cause. In the event the Employment Period terminates under this Agreement as a result of the Executive or the Company terminating the Executives employment without cause or the Executive terminating his employment for Good Reason subsequent to a Change in Control, the Executive shall be entitled to the payments and benefits set forth in this Section 5(a) always provided that no Important Cause be existing for any termination by the Company within the meaning of Section 3(c) para (i) (iv) of this Agreement regardless of whether qualifying as an Important Clause pursuant to article 337 CO:
(i) Termination by the Executive. If the Executives employment is terminated by Notice of Termination by the Executive, the Company shall pay the Executive (A) no later than on the Date of Termination, the Executives accrued but unused vacation and Base Salary up to the Date of Termination (to the extent not theretofore paid) (the Accrued Benefits), and (B) the pro rated Target Bonus up to the Date of Termination with such sum to be paid in lump sum within 30 days following the Date of Termination; provided, however, that the Executive shall be required to repay the payments described in clause (B) (net of any taxes paid by the Executive or the Company on such payments) in the event the Executive receives, within 18 months after the Date of Termination, written notice from the Company that in the reasonable judgment of the Company, the Executive engaged or is engaging in any conduct that violates or otherwise fails to comply with his obligations under Sections 7 and 8 hereof, or in the event the Executive is convicted of, or pleads guilty to, a felony involving moral turpitude within the three year period following the Date of Termination for an act or omission committed during the Employment Period.
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(ii) Termination by the Executive with Good Reason sub






