EXHIBIT 10.39
SEPARATION
AGREEMENT AND GENERAL RELEASE
RathGibson, Inc. (the
“ Company ”), and its affiliated companies, RGCH
Holdings Corp. (“ Holdings ”) and RG Tube
Holdings LLC (as successor by assignment to RGCH Holdings LLC) (the
“ LLC ”), and Barry Nuss (the “
Executive ”) (together, the “ Parties
”) entered into an employment agreement, dated as of April
17, 2006, as amended (the “ Employment Agreement
”). Any capitalized terms used but not defined herein
have the respective meanings set forth in the Employment Agreement.
The Parties hereby agree that this Separation Agreement and
General Release (this “ Agreement ”), dated
as of December 16, 2008, sets forth their complete agreement and
understanding regarding the termination of the Executive’s
employment with the Company.
1.
Separation Date;
Resignation .
(a)
The Executive’s
employment with the Company will terminate effective January 31,
2009 (the “ Separation Date ”). The
Executive shall return all property belonging to the Company,
Holdings, the LLC, and any of their respective subsidiaries
(collectively, the “ Affiliates ”) no later
than the Separation Date. Except as specifically provided
below, the Executive shall not be entitled to receive any benefits
of employment following the Separation Date.
(b)
By his execution and
delivery of this Agreement, effective as of the Separation Date,
the Executive hereby resigns from all positions as an officer,
member of the board of directors (or any similar governing body)
and/or member of any committee of the board of directors (or any
similar governing body) of the Company and any of the Affiliates
(as applicable) .
The
Executive agrees to provide such further documentation implementing
such resignations as the Company may reasonable request.
2.
Consideration of the
Company .
Termination of the Executive’s employment shall be
conclusively deemed to have been a termination of the
Executive’s employment by the Executive for Good Reason under
Section 5.5 of the Employment Agreement. Accordingly,
pursuant to Section 6.2 of the Employment Agreement and in
consideration of the releases and covenants of the Executive set
forth in this Agreement and in the Employment Agreement, the
Company will provide the Executive with the following:
(a)
as soon as reasonably
practicable (but in any event within fifteen (15) days) after
timely execution and delivery by the Executive to the Company of
this Agreement , the Accrued Benefits;
(b)
as soon as reasonably
practicable (but in any event within fifteen (15) days) after
timely execution and delivery by the Executive to the Company of
this Agreement , the Executive’s accrued but unpaid vacation,
if any, to the Separation Date;
(c)
because the Executive is
executing and delivering this Agreement to the Company upon the
Separation Date, Base Salary for twelve (12) months, payable in
weekly installments in accordance with the Company’s
customary payroll practices, commencing on the business day after
the Separation Date;
(d)
a lump sum payment of
$291,500, which is equal to the product of: (i) the $291,500 annual
target Bonus amount payable to the Executive with respect to the
2008-2009 fiscal year (which is from February 1, 2008 –
January 31, 2009); and (ii) a fraction, the numerator of which is
the number of days the Executive was employed during the 2008-2009
fiscal year (i.e., 365 days) and the denominator of which is 365,
payable as soon as reasonably practicable (but in any event within
fifteen (15) days) after timely execution and delivery by the
Executive to the Company of this Agreement ;
(e)
as soon as reasonably
practicable (but in any event within fifteen (15) days) after
timely execution and delivery by the Executive to the Company of
this Agreement , the $50,000 Retention Bonus; and
(f)
continued coverage under
the Company’s medical and dental plans for twelve (12) months
after the Separation Date; provided , that the Company may
provide such coverage through reimbursement of the cost of
continuation of group health coverage, pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1986, to the extent the
Executive is eligible and subject to the terms of the plan and the
law.
3.
Executive Release of
Rights .
The Executive (defined for the purpose of this Section
3 as the Executive and the Executive’s agents,
representatives, attorneys, assigns, heirs, executors, and
administrators) irrevocably, fully, and unconditionally releases
the Released Parties (defined as the Company, the Affiliates, DLJ
Merchant Banking Partners IV, L.P. (“ DLJ ”),
each of their respective affiliated companies, parents,
subsidiaries, predecessors, successors, assigns, divisions, related
entities and any of their respective past or present employees,
officers, agents, insurers, attorneys, administrators, officials,
directors, shareholders, employee benefit plans, and the sponsors,
fiduciaries, or administrators of the employee benefit plans of the
Company or any of the Affiliates) from any and all liability,
claims, demands, actions, causes of action, suits, grievances,
debts, sums of money, agreements, promises, damages, back and front
pay, costs, expenses, attorneys’ fees, and remedies of any
type, arising or that may have arisen out of or in connection with
the Executive’s employment with or termination of employment
from the Company or any of the Affiliates, from the beginning of
time through the date hereof, including but not limited to claims,
actions or liability under: (1) Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1991, the Civil Rights Act of
1866, the Age Discrimination in Employment Act, the Americans with
Disabilities Act of 1990, the Fair Labor Standards Act, the
Workers’ Adjustment and Retraining Notification Act, the
Employee Retirement Income Security Act of 1974, the Internal
Revenue Code, the New York State Human Rights law, or the
Administrative Code of the City of New York, all as amended; (2)
any other federal, state or local statute, ordinance, or regulation
regarding employment, termination of employment, or discrimination
in employment, and (3) the common law relating to employment
contracts, wrongful discharge, defamation, or any other matter.
Notwithstanding the foregoing, the parties agree that the
release of rights provided by the Executive under this Section
3 shall not include or cover any claims by the Executive
relating to: (A) the Executive’s rights under this Agreement;
(B) the Executive’s rights to benefits under the
Company’s 401(k) plan (subject to the terms and conditions
thereof); or (C) the Executive’s rights with respect to his
Class A Units (as defined therein) under the Amended and Restated
Limited Liability Company Agreement of RG Tube Holdings LLC, a
Delaware limited liability company (“ RG Tube
”), dated as of April 16, 2008, as amended (the “
LLC Agreement ”), which shall be governed by the LLC
Agreement and by: (i) the Letter Agreement, dated June 15, 2007,
between the Executive and RG Tube; and (ii) the Letter
Ag
