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EXHIBIT 10.13(a)
PITTSBURGH STEEL CORPORATION
AMENDED AND RESTATED RETENTION AGREEMENT
This Agreement, effective as of February
16, 2005, is an amendment and
restatement of, and replaces in its
entirety, the Post-Bankruptcy Retention
Agreement entered into effective as of
August 1, 2003 (the "Effective Date"), by
and between James G. Bradley, currently
residing at 4205 East Old Lake Road,
Huron, OH 44839, and WHEELING-PITTSBURGH
STEEL CORPORATION, a corporation
organized under the laws of the State of
Delaware (the "Company") and a
wholly-owned subsidiary of
WHEELING-PITTSBURGH CORPORATION, a corporation also
organized under the laws of the State of
Delaware (the "Parent").
In consideration of the covenants and
conditions herein contained and other good
and valuable consideration, receipt of
which is hereby acknowledged by each
party, the parties hereby agree as
follows:
1. EMPLOYMENT.
The Company shall employ the Executive
commencing on the Effective Date, and the
Executive hereby accepts such employment,
all upon the terms and conditions set
forth herein.
2. DUTIES AND
AUTHORITY.
(a)
POSITION. Executive shall serve as the President and Chief
Executive
Officer of the Company, with those
authorities, duties and responsibilities
customary to that position and such other
authorities, duties and
responsibilities as the Board of Directors
of Parent (the "Board") may
reasonably assign the Executive from time
to time. The Executive shall use his
best efforts, including the highest
standards of professional competence and
integrity, and shall devote substantially
all his business time and effort, in
and to his employment hereunder, and shall
not engage in any other business
activity which would conflict with the
rendition of his services hereunder,
except that the Executive may hold
directorships or related positions in
charitable, educational or not-for-profit
organizations, or directorships in
business organizations if approved by the
Board, and make passive investments,
which do not interfere with the Executive's
day-to-day acquittal of his
responsibilities to the Company.
(b) BOARD
MEMBERSHIP. Executive shall be nominated for election as a
director of Parent by the shareholders at
each annual meeting duration the term
of this Agreement (or at each annual
meeting at which his then current term as a
director would otherwise expire), and if so
elected by the shareholders,
Executive shall serve as a member of the
Board. The Executive acknowledges that
the election of directors is the
prerogative of the shareholders, acting in
their sole discretion and, accordingly,
that the failure of the shareholders to
approve his nomination to membership on the
Board for any term does not
constitute a violation of this Agreement.
In the event the Executive is elected
as a member of the Board, any determination
or action required of
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or permitted to the Board under this
Agreement shall exclude the vote of the
Executive. In addition, in the event the
Executive is elected as a member of the
Board, the Executive shall recuse himself
from any such Board's discussion
pertaining to the terms and conditions of
his employment by the Company, whether
pursuant to this Agreement or
otherwise.
3. TERM.
(a)
GENERAL. This Agreement shall have effect as of the Effective
Date,
and shall remain in effect until August 31,
2006 (the "Expiration Date") or, if
earlier, the date this Agreement and the
Executive's employment hereunder shall
have been terminated in accordance with the
provisions of Section 5. The period
from the Effective Date until this
Agreement shall have expired in accordance
with this Section or been terminated in
accordance with Section 5 is hereafter
referred to as "the term hereof" or "the
term of this Agreement."
(b)
SURVIVAL OF CERTAIN PROVISIONS. Notwithstanding anything else
herein
contained, the provisions of Sections 4
through 7 hereof shall survive the
termination of this Agreement and of the
Executive's employment hereunder.
4. COMPENSATION.
In return for his services hereunder, the
Executive shall be entitled to (i) the
Salary as specified below, (ii) bonuses, to
the extent provided below, and (iii)
certain fringe benefits, to the extent
provided below.
(a)
SALARY. Starting with the Effective Date, the Company shall pay
the
Executive, in accordance with the Company's
customary payroll practices for
executives, salary at an annual rate of
$400,000, provided, such salary rate
shall be reduced by 15% through May 1,
2004, subject to annual review and upward
adjustment at the determination of the
Board (as so adjusted, the Executive's
"Salary").
(b) BONUS.
In addition to the Salary, the Executive shall be to entitled
to participate in the Company's existing
short-term incentive plan for
executives, as the same may be amended from
time to time by the Board, and shall
also be entitled to receive a bonus of
one-half of his then Salary at the
"Performance Acceptance Date" with respect
to the Company's electric arc furnace
as that term is defined under the Company's
Term Loan Agreement as of the
Effective Date. The Board may also award
other bonuses from time to time in its
discretion.
(c)
LONG-TERM INCENTIVES. As of the Effective Date, the Executive shall
be
granted 60,000 shares of Restricted Stock
under and in accordance with the terms
of the Parent's 2003 Management Restricted
Stock Plan.
(d) FRINGE
BENEFITS. The Executive will be eligible for and entitled to
participate in other benefits maintained by
the Company for its senior executive
officers,
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as such benefits may be modified from time
to time for all such employees, such
as its medical, dental, 401(k), accident,
disability, and life insurance
benefits, on a basis not less favorable
than that applicable to other executives
of the Company. Any such participation
shall be subject to (i) the terms of the
applicable plan documents, (ii) generally
applicable policies of the Company and
(iii) the discretion of the Board or any
administrative or other committee
provided for in or contemplated by such
plan, exercised in accordance with
applicable law. The Executive will also be
entitled to the following:
(i) Subject to the Company's standard policies, four (4) weeks
of
vacation per calendar year (or any longer
period as shall be provided under the
Company's general vacation policies),
without reduction in Salary, to be taken
at such times and intervals as shall be
determined by the Executive subject to
the reasonable business needs of the
Company and to Company policies as in
effect from time.
(ii) Appropriate office space, administrative support, e.g.,
secretarial assistance, and such other
facilities and services as are suitable
to the Executive's position and adequate
for the performance of the Executive's
duties.
(iii) The use of a company car. The Company shall be responsible
for
the purchase price or lease payment and
shall pay or reimburse all of the
Executive's expenses for gasoline for use
of the Company car, and maintenance
and insurance of his Company car, subject
to such reasonable reporting
requirements as may be specified by the
Company and/or the Internal Revenue
Service. The Executive shall keep and
submit records of his business and
personal use of the automobile. The
Executive acknowledges that his personal use
of the automobile will result in additional
taxable income to him.
(iv) Up to $10,000 per annum in reimbursement of legal and
personal
tax preparation and planning
assistance.
(v) Payment or reimbursement of the cost of membership for
himself
and his immediate family in one country
club and one business club, and
business-related use thereof.
(vi) Payment or reimbursement of the cost, not covered by
health
insurance, of one comprehensive physical
examination during each year during the
term of this Agreement.
Executive acknowledges that he will have no
right to cash compensation in lieu
of any of the specific foregoing fringe
benefits except with respect to vacation
pay, and then only to the extent, if any,
allowed by the Company's vacation pay
policies as in effect from time to
time.
(e)
EXPENSES. The Executive will be entitled to reimbursement of
all
reasonable expenses, in accordance with the
Company's policy as in effect from
time to
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time and on a basis not less favorable than
that applicable to other executives
of the Company, including, without
limitation, telephone, travel and
entertainment expenses incurred by the
Executive in connection with the business
of the Company, subject to such reasonable
substantiation and documentation as
may be specified by the Company.
(f)
INDEMNIFICATION. The Company shall, and the Company shall use its
best
efforts to cause the Parent and any
subsidiaries or affiliates it may now or
hereafter have to, indemnify the Executive
to the maximum extent permitted by
law and regulation in connection with any
liability, expense or damage which the
Executive incurs as a result of the
Executive's employment and positions with
the Company and its current or future
subsidiaries as contemplated by this
Agreement, provided that the Executive
shall not be indemnified with respect to
any matter as to which he shall have been
adjudicated in any proceeding not to
have acted in good faith in the reasonable
belief that his action was in the
best interest of the Company and its
subsidiaries. The Company, on behalf of
itself and its current and future
subsidiaries, hereby confirms that the
occupancy of all offices and positions
which in the future are or were occupied
or held by the Executive in connection with
his employment under this Agreement
have been so occupied or held at the
request of and for the benefit of the
Company and its subsidiaries for purposes
of the Executive's entitlement to
indemnification under applicable provisions
of the respective articles of
organization and/or other similar documents
of the Company and its subsidiaries.
Expenses incurred by the Executive in
defending a claim, action, suit,
investigation or proceeding shall be paid
by the Company in advance of the final
disposition thereof upon the receipt by the
Company of an undertaking by the
Executive to repay such amount if it shall
ultimately be determined that he is
not entitled to be indemnified hereunder.
The foregoing rights are not exclusive
and shall not limit any rights accruing to
the Executive under any other
agreement or contract or under applicable
law.
(g)
PARACHUTE PAYMENT TAXES. Notwithstanding any other provisions of
this
Agreement, in the event that any payment or
benefit under this Agreement or any
other agreement or arrangement of the
Company received or to be received by the
Executive in connection with a Change in
Control or the termination of the
Executive's employment (all such payments
and benefits, the "Total Payments") is
determined to be subject (in whole or part)
to the tax imposed by Section 4999
of the Code (the "Excise Tax"), then the
Executive shall be entitled to receive
an additional payment (a "Gross-Up
Payment") in an amount such that after
payment by the Executive of all taxes
(including any interest or penalties
imposed with respect to such taxes),
including without limitation any income
taxes and Excise Tax imposed upon the
Gross-Up Payment, the Executive retains an
amount equal to the Total Payments. All
determinations required to be made under
this Section 4(g), including whether and
when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the
assumptions to be utilized in
arriving at such determination, shall be
made by the Company's accountants or
such other certified public accounting firm
reasonably
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acceptable to the Company as may be
designated by the Executive which shall
provide detailed supporting calculations
both to the Company and the Executive.
5. TERMINATION OF
EMPLOYMENT AND EFFECTS THEREOF.
(a)
TERMINATION. This Agreement and the Executive's employment under
this
Agreement may be terminated only in the
following circumstances. On any
termination in accordance with this
Section, the Executive (or in the event of
his death, his estate) shall be entitled to
the supplemental pension payment or
payments described in (d) below if then
earned. In addition, the Executive (or
in the event of his death, his estate)
shall be entitled to his then Salary
earned but unpaid through the end of the
month in which termination (including
death) occurred. The Company shall have
only such further obligations to the
Executive (or in the event of his death,
his estate), if any, as are specified
below under the applicable termination
provision.
(i) UPON DEATH. In the event of the Executive's death during
the
term hereof, the Executive's employment
hereunder shall immediately and
automatically terminate.
(ii) AS A RESULT OF DISABILITY. In the event that the Executive
becomes disabled during the term hereof
within the meaning of the Company's then
applicable long-term disability plan, the
Company may terminate the Executive's
employment without further obligation upon
notice to the Executive. In the event
of such disability, the Executive will
continue to receive his base salary and
benefits under Section 4 hereof until the
earlier of his death or the date the
Executive becomes eligible for disability
income under the Company's then
applicable long-term disability plan or
workers' compensation insurance plan.
(iii) BY THE COMPANY FOR CAUSE. The Company may terminate the
Executive's employment for Cause (as
defined in subsection (b) below) at any
time upon notice to the Executive setting
forth in reasonable detail the nature
of such Cause.
(iv) BY THE COMPANY OTHER THAN FOR CAUSE. The Company may
terminate
Executive's employment other than for Cause
upon thirty (30) days notice to the
Executive (or at its option immediately
with thirty (30) days continued
compensation, including then Salary and
benefits, in lieu of such notice). In
the event of such termination, Executive
(or in the event of his death following
termination, his estate) shall be entitled
only to the additional amounts
described in subparagraph (A) below and the
continuation of health insurance
benefits described in subparagraph (B)
below:
(A) Salary and Pro Rata Bonus Payment. If the Executive's
employment is terminated by the Company
without Cause, the Executive shall be
entitled to a payment equal to three (3)
times his annual Salary at the highest
annualized rate in effect during the one
year immediately preceding the date of
the date
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of termination, payable in a single lump
sum within thirty (30) days of
termination, and a pro rata bonus in an
amount determined under the terms of the
applicable Company bonus plan, payable at
the same time as executive bonuses are
paid generally under the applicable Company
bonus plan, but in no event later
than March 31 of the year following the
year in which the termination occurs.
(B) Health Care Continuation. If at his termination of
employment by the Company without Cause the
Executive is eligible to and timely
elects continued health coverage under
Sections 601-607 of ERISA ("COBRA
Continuation") then, for the period of such
COBRA Continuation, the Company
shall also pay that share of the premium
cost of Executive's COBRA Continuation
(and that of his eligible dependents also
electing COBRA Continuation) in the
Company's group health plan as it pays for
active employees of the Company and
their dependents generally.
(v) BY THE EXECUTIVE. Executive may terminate his employment
and
this Agreement for any or no reason
whatsoever at any time upon sixty (60) days'
notice. In the event the Executive gives
such notice within six (6) months
following a Change of Control or for and
within sixty (60) days of having Good
Reason (whether before, on, or after a
Change of Control), on his resignation
shall be treated as a termination of
employment by the Company without Cause for
purposes of entitling him to, and he shall
then be entitled to, the Salary and
pro rata bonus payment and COBRA
Continuation on and subject to the terms and
conditions applicable in such circumstances
under paragraph (iv) above. In the
event the Executive resigns other than in
the circumstances described in the
preceding sentence, he shall not be
entitled to any additional Salary or pro
rata bonus payment or COBRA Continuation.
The Company may at its sole option
waive the requirement of advance notice and
decline to accept the Executive's
service for any period following its
receipt of notice, but in that event
Executive shall be entitled to continued
compensation in accordance with Section
4 for the entirety of the otherwise
applicable notice period as well as Salary
and pro rata bonus payment and COBRA
Continuation thereafter in accordance with
this paragraph if applicable.
(b)
DEFINITIONS. For these purposes:
(i) "Cause" means the Executive has: (A) been convicted of, or
has
pled guilty or nolo contendere to, or been
indicted for any felony, or any
misdemeanor involving moral turpitude under
the laws of the United States or any
state or political subdivisions thereof;
(B) committed a breach of duty of
loyalty which is detrimental to the
Company; (C) materially violated any
provision of Section 6 of this Agreement;
(D) failed to perform or adhere to
explicitly stated duties or guidelines of
employment or to follow the directives
of the Board (which are not unlawful to
perform or to adhere to or follow and
which are within the scope of Executive's
duties) following a written warning
that if such failure continues it will be
deemed a basis for a "For Cause"
dismissal; or (E) acted with gross
negligence or willful misconduct in the
performance of the Executive's duties. No
act, or failure to act, on the
Executive's part shall be deemed
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"willful" unless done, or omitted to be
done, by the Executive not in good faith
and without reasonable belief that the
Executive's act, or failure to act, was
in the best interest of the Company.
Following a Change of Control, subsection
(D) above shall be deleted from this
definition of "Cause."
(ii) "Change of Control" means the occurrence of any of the
following: (A) a merger or consolidation of
Parent or the Company with or into
another person or the sale, transfer, or
other disposition of all or
substantially all of the Parent's or
Company's assets to one or more other
persons in a single transaction or series
of related transactions, unless
securities possessing more than 50% of the
total combined voting power of the
survivor's or acquirer's outstanding
securities
