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Exhibit
10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
July 17, 2007
This Agreement, effective as of the
above date (the “Effective Date”), is by and between
Paul J. Mooney, currently residing at 323 Parkway Drive,
Pittsburgh, PA 15228 (the “Executive”), 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”). Upon the Effective Date, the Employment
Agreement, dated as of April 1, 2006 (the “Prior
Agreement”), between the Company and the Executive shall
terminate and be of no further force or effect (with the exception
of the indemnification and other provisions that are specifically
provided in such agreement to survive termination). In
consideration of the covenants and conditions herein contained and
other good and valuable consideration, receipt of which is hereby
acknowledged by each party, and intending to be legally bound, 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.
The Executive shall serve as the
Executive Vice President and Chief Financial 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 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 in writing by the 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.
(a) General. This
Agreement shall have effect as of the Effective Date, and shall
remain in effect until the second anniversary of the Effective Date
(the “Initial Employment Term”) 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 Executive’s employment under this
Agreement shall renew automatically for successive
one (1)-year periods, unless at least
ninety (90) days prior to the end of the Initial Employment
Term or any subsequent anniversary of the Effective Date either
party shall have given notice (“Termination Notice”) to
the other party that the term of employment shall terminate on that
anniversary date. 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(f), 4(g), 5, 6, and 7 hereof shall survive
the termination of this Agreement and of the Executive’s
employment hereunder (whether or not this Agreement terminates
during its term or by non-renewal).
In return for his services hereunder,
the Executive shall be entitled to the following:
(a) Salary. Starting
on 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 $340,000, subject to annual
review and upward adjustment at the determination and sole
discretion of the Board (as so adjusted, the Executive’s
“Salary”). Additionally, from the Effective Date until
December 31, 2007, to the extent that the Executive remains
employed by the Company during the applicable customary payroll
period, the Company shall pay to the Executive, in equal, pro-rata
installments in accordance with the customary payroll practices for
executives, an amount equal to (i) the amount the Executive
would have earned had his salary been $340,000 from January 1,
2007 until the Effective Date less (ii) the amount of salary
actually earned by the Executive from January 1, 2007 until
the Effective Date.
(b) Bonus. In addition
to the Salary, the Executive shall be entitled to participate in
the Company’s short-term incentive plans and programs for
executives as the Board may establish from time to time, subject to
the applicable terms and conditions of such plans and programs and
to the discretion of the Board or any administrative or other
committee provided for in or contemplated by such plan or program,
exercised in accordance with applicable law. The Board may also
award other bonuses from time to time in its discretion.
(c) Long-Term
Incentives. The Executive shall be eligible to participate in
such long-term incentive plans and programs for executives as the
Board may establish from time to time, subject to the applicable
terms and conditions of such plans and programs and to the
discretion of the Board or any administrative or other committee
provided for in or contemplated by such plan or program, exercised
in accordance with applicable law.
(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
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favorable than that applicable to peer
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
to 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) Participation in the
Company’s 2006 Supplemental Executive Retirement Plan
(SERP).
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 or required by applicable law.
(e) Business Expenses.
The Executive will be entitled to reimbursement of all reasonable
business 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
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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 of 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 in 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. 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. No Gross-Up Payment shall be made before six months
and one day after the Executive’s termination of employment
or later than the end of the Executive’s taxable year next
following the taxable year in which the Executive paid the Excise
Tax.
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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
SERP 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 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 eligible for benefits under the Company’s 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 his 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
a one-time payment in an amount equal to two (2) times his
annual Salary at the highest annualized rate in effect during the
one year immediately preceding such date, payable in a single lump
sum six months and one day after the 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
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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 bonus plan, 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 (as defined in
subparagraph (b) below), the Executive shall be entitled to
receive (1) 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 six months and one day after the termination, in
lieu of the amount described in subparagraph (A) above,
(2) COBRA Continuation under subparagraph (B) above (but
in this event, for a maximum of eighteen (18) months),
(3) a pro rata bonus as determined under subparagraph
(C) above, and (4) solely with respect to a Change of
Control that occurs during the term of this Agreement, the Company
shall cause all equity incentive awards granted to the Executive to
become fully vested. For the avoidance of doubt, the Change of
Control that occurred on November 30, 2006 shall not be deemed
to have occurred during the term of this Agreement for purposes of
Section 5(a)(iv)(D)(4). 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 of
Control or (ii) otherwise arose in connection with or
anticipation of a Change of Control then for all purposes of this
Agreement the date of the Change of 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 six months and
one day after the 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
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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
de
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