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Exhibit 10.12(c)
WHEELING-PITTSBURGH STEEL CORPORATION
AMENDED AND RESTATED RETENTION AGREEMENT
This Agreement, effective as of February 15, 2006, 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"),
and the amendment and restatement of the Post-Bankruptcy Retention
Agreement,
entered into effective as of February 16, 2005, by and between the
Daniel C.
Keaton, currently residing at 119 N. Sugar Street Apt. B, St.
Clairsville, OH
43950, 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, Human Resources
and Public
Relations 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
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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 and
the provisions of Section 5(a)(vi)(B) and the other provisions
referenced
therein shall extend beyond the Expiration Date to the extent
described therein.
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 $165,000, 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:
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(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 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 for each calendar year (or pro
rata
portion thereof in the event of termination), to be made no later
than March 15
of the following calendar year, 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.
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(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 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
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and supplemental pension contribution (as described in Section
4(d)(vii)) earned
or 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 Payment. Under this subparagraph, the Executive shall
be
entitled to receive one-time payment in 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.
(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
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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 15 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. Notwithstanding the above,
if, as
of
the date of the change of control, the $25,000 annual payment
referred
to
in Section 4(d)(vii) has not been substituted with a sixteen
percent
(16%) increase in base salary ( which increase would be included in
the
calculation of Salary for purposes of the above payment upon change
of
control), , then for purposes of calculating the Executive's
payment under
this
subparagraph (D), the Executive's Salary at the highest
annualized
rate
shall be increased by 16%. 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
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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 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 Execut
