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EXHIBIT 10.13(f)
WHEELING-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 the John W. Testa, currently
residing at 150 Thunderwood Drive,
Bethel Park, PA 15102, 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.
Executive shall serve as the Senior Vice
President, Secretary and Chief
Restructuring 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") or the
Company's President and Chief Executive
Officer 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 President and Chief
Executive Officer, and make passive
investments, which do not interfere with
the Executive's day-to-day acquittal of
his responsibilities to the Company.
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
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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
$156,000, 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 42,857 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, 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
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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 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.
(vii) An annual contribution (or pro rata portion thereof in
the
event of termination) of not less than
$25,000 to a program of insurance or
similar arrangement intended to provide
supplemental pension and death benefits
to or for the benefit of the Executive.
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 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
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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 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 prior to its
expiration under Section 3 in the
following circumstances. On any termination
(including expiration of the term
hereof), the Executive (or in the event of
his death, his estate) shall be
entitled to his then Salary and
supplemental pension contribution (as described
in Section 4(d)(vii)) earned or
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accrued but unpaid through the end of the
month in which termination (including
death) occurred but the Company shall have
only such further obligations to the
Executive, if any, as are specified below
under the applicable termination
provisions.
(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 subparagraphs (A) and (C)
below and the continuation of health
insurance benefits described in
subparagraph (B) below, subject to (D) below:
(A) Salary Continuation. Under this subparagraph, the Executive
shall be
entitled to receive an amount equal to one (1) times his then
Salary
payable in a single lump sum within thirty (30) days of
termination.
(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 (or
for
twelve
(12) months, if less), 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.
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(C) Pro Rata Bonus. The Executive shall be entitled to 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.
(D) Effect of Change of Control. In the event the Company
terminates
the
Executive's employment other than for Cause within one (1) year
following
a Change of Control, the Executive shall be entitled to receive
an amount
equal to two (2) times his annual Salary at the highest
annualized
rate in effect during the one year immediately preceding the
date of
the Change of Control, payable in a single lump sum within
thirty
(30) days
of termination, in lieu of the amount described in subparagraph
(A) above,
COBRA Continuation under subparagraph (B) above (but in this
event, for
a maximum of eighteen (18) months) and a pro rata bonus as
determined
under subparagraph (C) above. Anything in this Agreement to the
contrary
notwithstanding, if the Executive's employment with the Company
is
terminated other than for Cause prior to the date on which a Change
of
Control
occurs, and it is reasonably demonstrated that such termination
(i) was at
the request of a third party who has taken steps reasonably
calculated
to effect a Change in Control or (ii) otherwise arose in
connection
with or anticipation of a Change in Control then for all
purposes
of this Agreement the date of the Change in Control shall mean
the date
immediately prior to the date of such termination.
(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.
(A) Good Reason. In the event the Executive gives such notice
for
and within sixty (60) days of having Good
Reason, on the effective date of his
resignation he shall be entitled to receive
an amount equal to one (1) times his
annual Salary at the highest annualized
rate in effect during the one year
immediately preceding the date of the date
of termination, payable in a single
lump sum within thirty (30) days of
termination, COBRA Continuation under
subparagraph (B) of paragraph (iv) above
and a pro rata bonus under subparagraph
(C) of paragraph (iv) above.
(B) Effect of Change of Control. In the event the Executive
gives
such notice within the period of thirty
(30) days beginning six (6) months
immediately following a Change of Control,
regardless of whether the Executive
has Good Reason to terminate his
employment, he shall receive the identical
benefits as if the termination had occurred
under Section 5(a)(iv)(D) above. In
the event that at any time within one (1)
year following a Change of Control the
Executive gives such notice for and within
sixty (60) days of having Good
Reason, he shall receive the identical
benefits as if the termination had
occurred under Section 5(a)(iv)(D) above.
Anything in this Agreement to the
contrary notwithstanding, if the
circumstances constituting Good Reason occur
prior to the date on which a Change of
Control occurs, and it is reasonably
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demonstrated that such circumstances (i)
occurred at the request of a third
party who has taken steps reasonably
calculated to effect a Change in Control or
(ii) otherwise arose in connection with or
anticipation of a Change in Control
then for all purposes of this Agreement the
date of the Change in Control shall
mean the date immediately prior to the
occurrence of such circumstances.
(C) Resignation Without Good Reason. In the event the Executive
resigns other than in the circumstances
described in subparagraphs (A) and (B)
above, he shall not be entitled to any
additional Salary or COBRA Continuation
or pro rata bonus. The Company may at its
sole option waive the requirement of
advance notice and decli
