|
EXHIBIT
10.9
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), between Metal
Services Acquisition Corp., a Delaware corporation
(“Buyer”), Tube City IMS Corporation, a Delaware
corporation (“ Company ”) and Joseph Curtin
(“ 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 President and Chief Operating Officer of the
Tube City Division of the Company pursuant to the terms of an
Employment Agreement dated as of December 21, 2004 (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 President and Chief Operating Officer of
the Tube City Division 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 seventeen percent (17%) 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 2D 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 the President
and Chief Operating Officer of Tube City Division 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
$535,600 (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 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.
2
(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. Deferred
Compensation . In addition to any other payments or benefits
under this Agreement, Executive shall be entitled to Normal
Retirement Benefits or Early Retirement Benefits (as hereinafter
defined) in accordance with the following:
(a) Normal Retirement
Benefits . Subject to the other provisions of this
Section 2C hereof, when Executive attains 65 years of
age, or if later, upon separation of service, Executive shall be
entitled to retire from the Company and to receive retirement
benefits of Forty-Five Thousand Dollars ($45,000) annually (“
Normal Retirement Benefits ”), payable, commencing as
of the first of the month following the month in which normal
retirement occurs, in equal monthly installments, for a period of
ten (10) years. Notwithstanding the foregoing, if Executive is
deemed to be a “specified employee” as defined in
Section 409A(a)(2)(B)(i) of the Internal Revenue Code and the
regulations and guidance issued thereunder relating to deferred
compensation, then such Normal Retirement Benefits shall commence
as of the first of the month after the sixth month following the
date in which separation from service on account of the
Executive’s normal retirement occurs.
(b) Early Retirement
Benefits . If the Executive separates from service from the
Company at or after he attains age fifty-five (55) and before
he attains age sixty-five (65) and subject to
Section 2C(f) hereof, Executive shall be entitled to
receive retirement benefits of Twenty-Five Thousand Dollars
($25,000) at age fifty-five (55), plus Two Thousand Dollars
($2,000) for each full year of age attained between ages fifty-five
(55) and sixty-five (65) as determined at the date of
early retirement to a maximum of Forty-Three Thousand Dollars
($43,000) at age 64 (“ Early Retirement Benefits
”), the Early Retirement Benefits as so calculated to be
payable annually, commencing as of the first of the month following
the month in which early retirement occurs, in equal monthly
installments, for a period of ten (10) years. Notwithstanding
the foregoing, if Executive is deemed to be a “specified
employee” as defined in Section 409A(a)(2)(B)(i) of the
Internal Revenue Code and the regulations and guidance issued
thereunder relating to deferred compensation, then such Early
Retirement Benefits shall commence as of the first of the month
after the sixth month following date in which separation from
service on account of the Executive’s early retirement
occurs.
(c) Vesting and Forfeiture
of Normal Retirement Benefits or Early Retirement Benefits .
Executive is fully vested as of the Effective Date in his Normal
Retirement Benefits
3
and Early Retirement Benefits. Executive
shall forfeit any and all rights to receive any of the vested
Normal Retirement Benefits or vested Early Retirement Benefits, as
the case may be, if his employment is terminated for any reason
other than death or Disability prior to attaining age fifty-five
(55), or if, having attained age fifty-five (55), his employment
thereafter is terminated for Cause, or, during or after the period
of his employment by the Company, he violates any of the provisions
of Section 3 of this Agreement.
(d) Payment of Normal
Retirement Benefits in the Event of Disability . Anything in
this Section 2C to the contrary notwithstanding, in the
event of the Executive’s Disability, the Executive shall be
entitled to fully vested Normal Retirement Benefits, commencing as
of the first of the month following the month in which Disability
occurs, subject to forfeiture of any unpaid Normal Retirement
Benefits if he thereafter violates any of the provisions of
Section 3C of this Agreement.
(e) Payment of Normal
Retirement Benefits or Early Retirement Benefits in the Event of
Death . If Executive dies having vested Normal Retirement
Benefits or Early Retirement Benefits, whether or not any such
Normal Retirement Benefits or Early Retirement Benefits have been
paid at the date of death, payment of the vested Normal Retirement
Benefits or Early Retirement Benefits, based on his age at the date
of his death, shall be paid over ten (10) years, commencing as
of the first of the month following the month in which death occurs
if death occurs during employment, or continued for the balance of
the ten-year term in process if vested Normal Retirement Benefits
or Early Retirement Benefits are being currently paid at death, as
the case may be, to the Executive’s designated beneficiary or
beneficiaries or in default of such designation to the
Executive’s estate. (For the avoidance of doubt, if Executive
dies before attaining age 55, the amounts payable under this
paragraph shall be determined as if Executive were age 55 on the
date of death.)
(f) Adjustment in Normal
Retirement Benefits and Early Retirement Benefits . If
Executive separates from service from the Company in the year
commencing January 1, 2115 or later, Normal Retirement
Benefits shall be increased to Fifty Thousand Dollars ($50,000)
annually; and Early Retirement Benefits shall increase to Thirty
Thousand Dollars ($30,000) annually at age 55, plus Two Thousand
Dollars ($2,000) for each full year of age attained between ages 55
and 65 at the date of early retirement to a maximum of Forty Eight
Thousand Dollars ($48,000) at age 64. Additionally, Normal
Retirement Benefits and Early Retirement Benefits as provided for
in this Section 2C shall be further increased by the
percentage to the extent, if any, in each year from and after
calendar year 1995, the Consumer Price Index for December exceeds
the Consumer Price Index for the preceding December by more than
ten percent (10%). “ Consumer Price Index ”
shall mean the revised “Consumer Price Index for Urban Wage
Earners and Clerical Workers (CPI-W) - United States. All items
(1967 = 100)” published by the Bureau of Labor Statistics,
U.S. Department of Labor. Notwithstanding anything herein to the
contrary, no adjustments shall be made to the amount of Normal
Retirement Benefit or Early Retirement Benefit otherwise payable
with respect to any period after Executive separates from
service.
(g) All deferred compensation
amounts payable or otherwise provided to Executive pursuant to this
Section 2C shall be effective only to the extent it
complies with the requirements of Section 409A of the Internal
Revenue Code and the regulations and guidance
4
issued thereunder relating to deferred
compensation, as promulgated from time to time (“
Section 409A ”). In the event that this
Section 2C does not conform to Section 409A,
Executive agrees that the Company may take such reasonable actions
as may be necessary to bring this Section 2C into
compliance with Section 409A, while at the same time providing
Executive with substantially comparable economic
benefits.
2D. 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 writt
|
