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EXHIBIT
10.13
EXECUTION
VERSION
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
This AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (this “
Agreement ”) is made as of the Effective Date (as
defined below), among Metal Services Acquisition Corp., a Delaware
corporation (“ Buyer ”), Tube City IMS
Corporation, a Delaware corporation (“ Company
”) and Daniel E. Rosati (“ Executive ”).
Any capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in Section 4A
hereof.
WHEREAS , Executive is
currently employed as Vice President, Chief Financial Officer and
Treasurer of the Company, International Mill Service Inc. (“
IMS ”), and International Mill Service Limited
(“ IMS Ltd .”), and Vice President, and Chief
Financial Officer and Treasurer of Tube City, LLC (“ Tube
City ”) pursuant to the terms of an Employment Agreement
dated as of December 21, 2004, as amended June 21, 2005
(the “ Current Agreement ”);
WHEREAS , upon the
closing of the transactions (“ Closing ”)
described in the Stock Purchase Agreement, dated as of
November 10, 2006, (the “ Stock Purchase
Agreement ”) by and among the Company, Mill Services
Holdings, LLC, a Delaware limited liability company, the other
sellers listed on Annex A thereto, Buyer will acquire all of
the outstanding stock of the Company; and
WHEREAS , from and
after the Closing (the date of such Closing, the “
Effective Date ”), the Company desires that Executive
continue to serve as the Vice President, Chief Financial Officer
and Treasurer of the Company, on the terms and subject to the
conditions set forth herein, and Executive has agreed to do so;
and
WHEREAS , the Company
and Executive desire to amend and restate the Current Agreement in
its entirety, in the form of this Amended and Restated Employment
Agreement; with effect from the Effective Date.
NOW THEREFORE , in
consideration of the mutual promises made herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and Executive hereby agree as
follows:
Section 1. Grant of
Restricted Stock . On the Effective Date, Executive shall
be granted shares of common stock of Buyer (the “
Restricted Stock ”) pursuant to the Metal Services
Acquisition Corp. Restricted Stock Plan (“ Restricted
Stock Plan ”). The number of shares of Restricted Stock
shall be equal to seven and one-quarter percent (7.25%) of the
total number of shares reserved for issuance under the Restricted
Stock Plan on the Effective Date, which shall be equal to ten
percent (10%) of the total number of shares of common stock of
Buyer outstanding upon the Closing, and such Restricted Stock shall
be granted pursuant to the terms and conditions set forth in the
Restricted Stock Plan and a Restricted Stock Agreement (as defined
in the Restricted Stock Plan). Executive shall be vested
immediately as to twenty-five percent (25%) of the shares of
Restricted Stock on the Effective Date, and fifteen percent
(15%) of the shares of Restricted Stock on each of the first
five anniversaries of the Effective Date, but only to the extent
that Executive remains continuously employed through the applicable
vesting date.
Section 2. Terms and
Conditions of Employment Between the Company and Executive
.
2A. Employment, Duties
.
(a) The Company shall employ
Executive, and Executive hereby accepts employment with the
Company, upon the terms and conditions set forth in this Agreement
for the period beginning on the Effective Date and ending as
provided in Section 2C hereof (the “
Employment Period ”).
(b) During the Employment
Period, Executive shall report to the Chief Executive Officer of
the Company, and shall initially continue to serve as Vice
President, Chief Financial Officer and Treasurer of the Company,
IMS, and IMS Ltd, and the Vice President, Chief Financial Officer
and Treasurer of the Company or in such other senior managerial
capacities of the Company or any of its subsidiaries, as requested
by the Chief Executive Officer or the Board.
(c) During the Employment
Period, Executive shall devote his full business time and attention
to the business and affairs of the Company and its subsidiaries. So
long as Executive is employed by the Company, Executive shall not,
without the prior written consent of the Board, accept other
employment, or perform other services for compensation.
(d) The Company and the
Executive agree that Executive’s primary office shall be at
the Company’s place of business in Glassport, Pennsylvania,
subject to reasonable travel requirements.
2B. Base Salary and
Benefits .
(a) During the Employment
Period, the Company shall pay Executive an annual base salary of
$208,000 (the “ Base Salary ”). As used herein,
references to “Base Salary” shall include all
subsequent increases in annual base salary during the Employment
Period. The Base Salary shall be payable in regular installments in
accordance with the Company’s general payroll practices (as
in effect from time to time).
(b) In addition to the Base
Salary, during the Employment Period, Executive will be eligible to
earn an annual bonus under a bonus plan to be established by the
Company, payable in accordance with the Company’s customary
practices, as determined by the Board, in its sole discretion based
upon the Company’s achievement of budgetary and other
objectives set by the Board; provided that, in determining the
amount of the annual bonus, if any, to be paid to Executive, the
Board shall, in determining whether the Company has achieved the
budgetary and other goals set by the Board, disregard any payments
by the Company and its subsidiaries to Onex (as defined below) and
affiliates.
(c) During the Employment
Period, Executive shall be entitled to participate in all of the
Company’s employee benefit programs for which senior
executives of the Company
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and its subsidiaries are generally
eligible,. Without duplication of any employee benefits provided to
all senior executives of the Company and its subsidiaries, the
Company shall reimburse Executive for the annual premium cost of $1
million of term life insurance coverage purchased by Executive on
his life, up to a maximum of Eleven Thousand Dollars ($11,000) per
year.
(d) During the Employment
Period, the Company shall (without duplication of any employee
benefits provided to Executive pursuant to other provisions of this
Agreement) reimburse Executive for all reasonable business expenses
incurred by him in the course of performing his duties and
responsibilities under this Agreement which are consistent with the
Company’s policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to
the Company’s requirements with respect to reporting and
documentation of such expenses.
(e) All amounts payable or
otherwise provided to Executive pursuant to this Agreement shall be
subject to all applicable withholding and deduction
obligations.
2C. Term .
(a) The Employment Period
shall begin on the Effective Date and end on the fifth anniversary
of the Effective Date, and shall automatically be extended by one
year at each anniversary of the Effective Date on the same terms
and conditions set forth herein, as modified from time to time by
the parties hereto, unless the Company or Executive gives the other
party written notice of election not to so extend the Employment
Period at least sixty (60) days prior to any such extension
date; provided that (i) the Employment Period shall
terminate prior to such date immediately upon the death or
Disability of Executive, (ii) the Employment Period may be
terminated by the Company at any time prior to such date with or
without Cause and (iii) the Employment Period may be
terminated by Executive at any time prior to such date.
(b) If the Employment Period
is terminated (i) by the Company without Cause, (ii) by
Executive for Good Reason, or (iii) because the Company elects
not to renew the Employment Period and as a result Executive is no
longer employed by the Company or its subsidiaries on substantially
the same terms as set forth herein, Executive shall be entitled to
receive the Base Salary through the date of termination plus
a “ Severance Payment ” equal to two
(2) times the Base Salary. The Severance Payment shall be
payable in equal monthly installments over a period of two
(2) years. In addition, (i) the Company shall provide
Executive with executive-level outplacement services from an
outplacement company selected by the Company, provided that the
Company shall not be required to spend more than Ten Thousand
Dollars ($10,000) for such services, and (ii) during the
period over which the Severance Payment is made, Executive shall be
entitled to continued health coverage on the same basis that such
coverage was provided to Executive prior to the termination of the
Employment Period, provided that coverage shall end earlier if and
when Executive becomes entitled to comparable coverage under
another employer’s health plan (and, if applicable, shall be
secondary to Medicare to the extent permitted by law). As a
condition to the Company’s obligations to make the Severance
Payments to Executive pursuant to this Section 2C(b) ,
Executive must (a) continue to comply with the restrictive
covenants contained in Section 3 , and (b) execute
and deliver a general release agreement in form and substance
satisfactory to the Company.
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(c) If the Employment Period
is terminated for any reason other than (i) by the Company
without Cause, (ii) by Executive for Good Reason, or
(iii) because the Company elects not to renew the Employment
Period and as a result Executive is no longer employed by the
Company or its subsidiaries on substantially the same terms as set
forth herein, Executive shall be entitled to receive only the Base
Salary through the date of termination.
(d) Except as otherwise
provided herein, all of Executive’s rights to compensation
and benefits (including bonus compensation) which accrue or become
payable after the termination of the Employment Period shall cease
upon such termination, other than reimbursement pursuant to
Section 2B(d) . Notwithstanding the foregoing,
Executive’s continued rights with respect to outstanding
awards, including the Restricted Stock, under the Company’s
equity compensation plans shall be determined in accordance with
the terms of such plans and any related agreements, and
Executive’s continued rights under the terms of any
compensation or benefit plans (including the Company’s
vacation policy, tax-qualified and nonqualified plans, bonus plan
and welfare plans) shall be determined under the terms of such
plans. The Company may offset any amounts due and payable by
Executive to the Company or its subsidiaries against any amounts
the Company owes Executive hereunder.
Section 3. Restrictive
Covenants .
3A. Confidential
Information . Executive acknowledges that the information,
observations and data obtained by him while providing services to
the Company and its subsidiaries concerning the business or affairs
of the Company, any of its subsidiaries (“ Confidential
Information ”)
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