EMPLOYMENT AGREEMENTEmployee Retention Agreement |
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Exhibit 10.3
EXECUTION COPY
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of June 2, 2008 (the Agreement), by and among Aleris International, Inc. (the Company), Aurora Acquisition Holdings, Inc. (the Parent) and Galdino Claro (the Executive).
WHEREAS, the Company desires that the Executive serve the Company as an Executive Vice President of the Company and Chief Executive Officer, Aleris Americas, 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 an Executive Vice President of the Company and the Chief Executive Officer of Aleris Americas responsible for the management of all of the Companys business operations in North and South America, currently comprised of the Companys Rolled Products North America business and its Recycling Americas business unit, , and the Executive hereby accepts such position and agrees to serve the Company in such capacity during the employment period fixed by Section 3 hereof (the Employment Period). The Executive shall have such duties and responsibilities as are consistent with the Executives position and as may be assigned by the Company 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.
(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. During the Employment Period, the Executive may not, without the prior written consent of the Company, 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). 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 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 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 Beachwood, Ohio, except for such travel as the performance of
the Executives duties in the business of the Company may require. For a period of up to two years from the date the Executive commences his employment with the Company, the Company shall provide reimbursement for reasonable travel and temporary housing expenses. These expenses will include the cost of a temporary rental apartment in the Cleveland area, including utilities and rented furnishings, and air transportation on a weekly basis to and from Cleveland, consistent with Aleris travel policies. At the time of your relocation to Cleveland, your moving, home sale and other relocation expenses will be provided under the Aleris relocation policies.
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 $500,000 per annum, (the Base Salary). 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), but in no event shall the Company pay the Executive a Base Salary less than that set forth above during the Employment Term.
(b) In addition to the Base Salary, during the Employment Period, but beginning for the fiscal year ending December 31, 2008, 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 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 AIP, subject to the Executives employment with the Company through the applicable payment date for any such Annual Bonus (unless otherwise provided herein); provided, however, Executives Annual Bonus for 2008 shall be prorated based on the number of months Executive was employed during 2008, and assuming an employment start date in June 2008, will be $218,750. The 2008 prorated Annual Bonus amount shall be fixed and guaranteed. To receive an Annual Bonus for 2008, Executive must be an active employee with the Company through the date of payout of AIP awards in 2009.
(c) In order to partially compensate the Executive for equity and other compensation that the Executive had to forego with the Executives prior employer, the Company shall provide the Executive with:
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(i) |
A sign-on bonus of $1 million, which shall be paid in monthly installments over 5 years, subject to the conditions of this paragraph (the Sign-on Bonus). In the event of the involuntary termination of the Executives employment by the Company without Cause (as that term is defined herein), the non-renewal of this Agreement by the Company |
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without Cause, the Executives resignation for Good Reason (as that term is defined herein), the Executives death, or the Executives Disability (as that term is defined herein), prior to the payment of the last installment, any unpaid installments shall be accelerated and paid to you in a lump sum within thirty days following the date of such termination. In the event of the Executives resignation other than for Good Reason, voluntary retirement, or the termination of your employment by Aleris for Cause, any unpaid installments as of the date of such resignation, retirement or termination for Cause shall be forfeited. |
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(ii) |
8,000 shares of restricted stock in Aleris parent company, the terms of which are contained in a separate agreement. |
(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, the Companys 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.
(e) 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 all senior executive officers of the Company.
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.
3. Employment Period.
The Employment Period shall commence on June 2, 2008 (the Effective Date) and shall terminate on the third anniversary of the Effective Date, provided that on the third anniversary of the Effective Date and on each anniversary thereafter, the Employment Period shall automatically be extended for additional one-year periods unless either party provides the other party with a Notice of Termination in accordance with Section 4(a) at least sixty (60) days before any such anniversary (the anniversary date on which the Employment Period terminates shall be referred to herein as the Scheduled Termination Date). Notwithstanding the
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foregoing, the Executives 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 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) Cause. The Company may terminate the Executives 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 Executives duties with the Company or one of its 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 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 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 Executives termination of employment hereunder for other than Cause, it is determined in good faith by the Board that the Executives employment could have been terminated for Cause pursuant to clause (iv) of this Section 3(c), the Executives 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 Executives employment hereunder during the Employment Period without Cause.
(e) Voluntarily. The Executive may voluntarily terminate his employment hereunder, with or without Good Reason, 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) (and, in the case of a termination by the Executive for Good Reason, complies with all requirements of such a termination as provided hereunder).
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4. Termination Procedure.
(a) Notice of Termination. Any termination of the Executives 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 11(a).
(b) Date of Termination. Date of Termination shall mean (i) if the Executives employment is terminated by his death, the date of his death, (ii) if the Executives 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 (whether or not for Good Reason), 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 Executives 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 or the Executive terminating his employment for Good Reason, the Executive shall be entitled to the payments and benefits set forth in this Section 5(a):






