Exhibit 10.12(i)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
January 8, 2007
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:
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 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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otherwise.
3.
TERM.
(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.
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, (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 $750,000 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 |
|
Amount Payable |
|
|
Within one
(1) year of Effective Date
|
|
$ |
4,000,000 |
|
|
After one
(1) year but less than two (2) years of Effective
Date
|
|
$ |
2,000,000 |
|
|
After two
(2) years but less than three (3) years of Effective
Date
|
|
$ |
1,000,000 |
|
|
After three
(3) years of Effective Date
|
|
$ |
0 |
|
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
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