This Amended and
Restated Employment Agreement (this “Agreement”), is
made as of January 8, 2007, by and between CRAIG T. BOUCHARD,
currently residing at ,
and WHEELING-PITTSBURGH CORPORATION, a corporation organized under
the laws of the State of Delaware (the “Company”). This
Agreement supersedes and replaces that certain Employment Agreement
between the Company and Executive effective as of December 19,
2006 (the “Effective Date”).
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:
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.
(a)
POSITION . Executive shall serve as the President 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 the Company (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 a reasonable portion of 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 retain his
position with Esmark Incorporated as a director, President and, if
approved by the Board, may hold directorships or related positions
in charitable, educational or not-for-profit organizations, or
directorships in business organizations, including and make passive
investments, which do not unreasonably 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 the Company by the shareholders at each annual meeting
during 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 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
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(a)
GENERAL . This Agreement shall have effect as of the
Effective Date, and shall remain in effect until November 30,
2007 subject to earlier termination under Section 3(b) or
Section 5 or extension as described below. 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.” The term
hereof shall be extended automatically for an additional year as of
December 1, 2007 and as of each subsequent annual anniversary
of such date (each such extension date is referred to herein as a
“Renewal Date”) unless at least one hundred twenty
(120) days prior to any such Renewal Date either party shall
have given notice to the other party that the term of this
Agreement shall not be so extended.
(b)
EFFECT OF POSSIBLE MERGERS . The Company has entered into a
Merger Agreement dated October 24, 2006 with Companhia
Siderurgica Nacional (CSN). In addition, a merger with Esmark
Incorporated has been proposed. Notwithstanding the foregoing, if
either of these proposed mergers is consummated, the Agreement will
terminate 30 days after completion of the merger.
(c)
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.
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, (iii) long-term incentive, and (iv)
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
$500,000, subject to annual review and upward adjustment at the
determination of the Compensation Committee of the Board (as so
adjusted, the Executive’s “Salary”). The payments
for services through the end of 2008 shall be made by the grant of
shares of Company common stock from the 2003 Management Incentive
Stock Plan or a successor plan based on the closing price of the
Company common stock on the day prior to the grant date (net of
required tax withholdings). On January 9, 2007, restricted
stock will be granted for the 24-month period from January 1,
2007 through December 31, 2008 based on a salary at an annual
rate of $500,000 for the entire 24-month period. The restrictions
shall lapse in equal portions on the first business day after the
end of each calendar quarter in arrears; provided that the
Executive is employed on the last day of the calendar quarter. In
addition, a pro rata lapse of restrictions shall be made for the
time period between the last lapse date and the date of the
involuntary termination of the employment of the Executive without
Cause or termination by the Executive for Good Reason (as defined
in Section 5(b)). This grant shall not preclude a later upward
adjustment of the Salary. Executive will be taxed on his Salary as
such shares of restricted stock vest and must arrange to pay the
Company’s tax withholding obligations on this income by
either (i) surrendering shares of Company common stock (the
Company shall then credit the fair market value of such surrendered
shares, determined as of the date when taxes otherwise would have
been withheld in cash, against such withholding taxes), or
(ii) reimbursing
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the Company in
cash for the amount of such withholding taxes.
(b)
BONUS . For the period from the Effective Date until
December 31, 2007, the Executive will not be eligible to
receive a bonus. In subsequent years, at the discretion of the
Compensation Committee, the Executive may 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. The
Board may also award other bonuses from time to time in its
discretion.
(c)
LONG-TERM INCENTIVES . Within 30 days of the Effective
Date, the Company shall make an initial equity grant to the
Executive as stated below. In all subsequent years, the Executive
shall be awarded such equity incentive awards as the Board or the
Compensation Committee shall determine from time to time in their
discretion. The terms of the initial equity grant shall be as
stated below with additional terms consistent with Company
practices:
Number of
restricted shares: 25,000
Vesting schedule
for restricted shares: Vest 1/3 on each of the first three
anniversaries of the Effective Date.
Executive may be
eligible to participate in other long-term incentive plans and
programs as the Board or the Compensation Committee may deem
appropriate from time to time.
(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 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
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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.
(vii) Special
Travel Arrangements. The Company shall permit, arrange for and bear
the cost and expense of the judicious and reasonable use by the
Executive of an airplane for business, personal and family travel,
including as an element of such cost and expense the federal, state
and local income tax consequences to the Executive of the use of
such airplane for non-business purposes.
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 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
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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 excise tax imposed by Section 4999 of the Code (together
with any interest or penalties imposed with respect to such excise
tax, 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 Excise Tax (and, for the
avoidance of doubt, the amount of 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 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 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 (x) one
(1) times his annual Salary at the highest annualized rate in
effect during the one year
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immediately
preceding the date of the date of termination, payable in a single
lump sum within thirty (30) days of termination, plus
(y) a pro rata bonus, in an amount determined under the terms
of the applicable Company bonus plan, (but not less than 100% of
the Executive’s annual Salary for the first year of this
Agreement), 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.
(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.
(C)
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 (as defined
in subparagraph (b) below), the Executive shall be entitled to
receive an amount equal to the greater of (i) or
(ii):
(i) 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), two (2) times his target bonus (which shall be 100%
of the Executive’s annual Salary if the Change of Control
occurs during the first year of this Agreement), and all equity
incentive awards will be fully vested (including the award pursuant
to Section 4(c)); or
(ii)The
amount payable under the following schedule.
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Change of
Control Date
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Amount Payable
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Within one (1) year of Effective
Date
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$4,000,000
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After one (1) year but less than two
(2) years of Effective Date
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$2,000,000
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After two (2) years but less than three
(3) years of Effective Date
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$1,000,000
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After three (3) years of Effective
Date
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$0
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For
purposes of comparing the amounts payable under (i) and (ii),
the value of the vesting of equity awards in (i) shall be the
fair market value of any restricted stock that is vested and the
difference between the current fair market value of the
Company’s stock and the exercise price of any option that is
vested.
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
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Agreement for
any or no reason whatsoever at any time. Except as provided in
su
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