THIS AGREEMENT
(“Agreement”), made and entered into this 24th day of
July, 2008 (the “Effective Date”), by and between A.M.
Castle & Co., a Maryland corporation (the
“Company”), and Scott F. Stephens (the
“Executive”);
WHEREAS, the
Company wishes to assure itself of the continuity of the
Executive’s service and has determined that it is appropriate
that the Executive receive certain payments in the event of an
involuntary termination of employment; and
WHEREAS, the
Company and the Executive accordingly desire to enter into this
Agreement on the terms and conditions set forth below;
NOW, THEREFORE, in
consideration of the premises and mutual covenants set forth
herein, IT IS HEREBY AGREED, by and between the parties as
follows:
1.
Relationship to Other Agreements . Except as otherwise
provided in any other agreement between the Company and the
Executive which specifically identifies this Agreement and
specifically provides that it supersedes this Agreement, this
Agreement shall supersede any and all other agreements between the
Executive and the Company regarding the payment of benefits upon a
termination of the Executive’s employment with the Company.
If the Executive is entitled to severance pay or other benefits
pursuant to the terms of this Agreement, the Executive shall not be
eligible to receive any severance pay or other benefits pursuant to
the terms of any other severance agreement or arrangement of the
Company (or any affiliate of the Company), including any
arrangement of the Company (or any affiliate of the Company)
providing benefits upon involuntary termination of
employment.
2.
Agreement Term . The “Term” of this Agreement
shall begin on the Effective Date and shall continue through the
first one-year anniversary of the Effective Date; provided,
however, that as of the first one-year anniversary of the Effective
Date, and on each one-year anniversary thereafter, the Term shall
automatically be extended for one additional year unless, not later
than 30 days prior to such applicable anniversary date, either
party shall have given written notice to the other party that it
does not wish to extend the Term.
3.
Certain Definitions . In addition to terms otherwise defined
herein, the following capitalized terms used in this Agreement
shall have the meanings specified below:
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(a)
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Cause . The term “Cause” shall
mean:
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(i)
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Executive’s willful theft or
embezzlement, or willful attempted theft of embezzlement, of
intangible assets or property of the Company;
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(ii)
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Any
willful act knowingly committed by Executive that subjects the
Company or any officer of the Company to any criminal liability for
such act;
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(iii)
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The
Executive’s engaging in egregious misconduct involving
serious moral turpitude to the extent that, in the reasonable
judgment of the Company, the Executive’s credibility and
reputation no longer conform to the standard of the Company’s
executives;
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(iv)
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Gross and willful misconduct by
Executive that results in a material injury to the
Company;
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(v)
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Willful dishonesty of Executive that
results in a material injury to the Company;
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(vi)
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Willful malfeasance by Executive,
provided that such malfeasance, in fact, has an injurious effect on
the Company;
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(vii)
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Executive’s willful
insubordination or willful refusal to perform assigned duties
provided that such assigned duties are consistent with the job
duties of the Executive and that the Executive shall have an
opportunity of 30 days after notice from the Company to cure
any such act or failure to act;
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(viii)
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Executive’s material breach of
this Agreement which continues for 30 days after notice from
the Company.
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(b)
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Code . The term “Code” means
the Internal Revenue Code of 1986, as amended.
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(c)
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Good Reason . The term “Good Reason”
shall mean:
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(i)
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a
material diminution in the Executive’s base
compensation;
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(ii)
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a
material diminution in the Executive’s authority, duties, or
responsibilities;
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(iii)
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a
material diminution in the authority, duties, or responsibilities
of the person to whom the Executive is required to
report;
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(iv)
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a
material diminution in the budget over which the Executive retains
authority;
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(v)
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a
material change in the geographic location at which the Executive
must perform services for the Company; or
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(vi)
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any
other action or inaction that constitutes a material breach by the
Company of this Agreement.
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For purposes of
this Agreement, in order for a termination of employment by the
Executive to be considered to be on account of Good Reason, the
following conditions must be met by the Executive:
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(A)
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the
Executive provides written notice to the Company of the existence
of the condition(s) described in this subparagraph
(c) potentially constituting Good Reason within 90 days
of the initial existence of such condition(s), and
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(B)
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the
Company fails to remedy the conditions which the Executive outlines
in his written notice within 30 days of such notice,
and
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(C)
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the
Executive actually terminates employment with the Company within
six months of providing the notice described in this subparagraph
(c).
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(d)
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Termination Date
. The term
“Termination Date” means the date on which the
Executive’s employment with the Company and its affiliates
terminates for any reason, including voluntary resignation. If the
Executive becomes employed by an entity into which the Company has
merged, or by the purchaser of substantially all of the assets of
the Company, or by a successor to such entity or purchaser, a
Termination Date shall not be treated as having occurred for
purposes of this Agreement until such time as the Executive
terminates employment with the successor and its affiliates
(including, without limitation, the merged entity or purchaser). If
the Executive is transferred to employment with an affiliate
(including a successor to the Company), such transfer shall not
constitute a Termination Date for purposes of this Agreement except
if the termination of the Executive is for Good Reason as provided
herein.
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4.
Payments and Benefits . Subject to the terms and conditions
of this Agreement, if the Executive’s employment is
terminated during the Term of this Agreement (A) by the
Company for a reason other than for Cause or (B) by the
Executive for Good Reason, the Executive shall be entitled
to:
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(a)
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a
lump sum severance payment equal to one times the Executive’s
annual base salary in effect immediately prior to the Termination
Date.
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(b)
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a
lump sum payment in an amount equal to the annual short-term
incentive compensation to which the Executive would have been
entitled had he continued in the employ of the Company through the
last day of the calendar year in which the Termination Date occurs
and had the applicable incentive target(s) for such calendar year
been met, pro-rated for the number of days during the calendar year
that the Executive was employed prior to the Termination
Date.
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(c)
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for
each performance cycle for which an award to the Executive is
outstanding under the Company’s long term incentive
compensation plan and with respect to which the Executive has
performed services to his Termination Date, a lump sum payment in
an amount equal to the target number of shares granted to the
Executive in the long term incentive plan to which the Executive
would have been entitled had he continued in the employ of the
Company through the last day of the performance cycle, pro-rated
for the number of days during the calendar year that the Executive
was employed prior to the Termination Date.
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(d)
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continued health benefit coverage
for the Executive and the Executive’s qualified beneficiaries
as provided in section 4980B of the Code (“COBRA”)).
Such COBRA continuation coverage shall be provided to the Executive
and the Executive’s qualified beneficiaries only if and to
the extent that the Executive (or his qualified beneficiaries, as
applicable) make a timely and proper election to be covered under
COBRA and make timely payments for the cost of such coverage;
provided, however, that such COBRA coverage shall be at the
Company’s expense for the period beginning on the day after
the Termination Date and ending on the earlier of (i) the
first anniversary of the Termination Date or (ii) the date on
which the Executive commences employment with another
employer.
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(e)
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for
the period beginning on the Termination Date and ending on the
earlier of (i) the first anniversary of the Termination Date
and (ii) the date on which the Executive commences employment
with another employer, the Executive shall be permitted the use of
a Company-owned or leased automobile on the terms and conditions
set forth in the Company’s Automobile Policy.
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For the
avoidance of doubt, the Executive shall not be entitled to any
benefits under this Agreement if his termination of employment
occurs on account of his death, disability, or voluntary
resignation (other than for Good Reason).
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5. Time
of Payments . Provided that the conditions of paragraph 6
(relating to waiver and release) have been satisfied, payments
pursuant to subparagraphs 4(a) and 4(b) shall be paid no later than
March 15th of the calendar year following the calendar year in
which the Executive’s Termination Date occurs or at such
earlier date as may apply in accordance with the
following:
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(a)
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the
payment pursuant to subparagraph 4(a) (relating to severance pay)
shall be paid within 10 days following the later of
(i) the Executive’s Termination Date or (ii) the
date on which the conditions of paragraph 6 are satisfied;
and
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(b)
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the
payment pursuant to subparagraph 4(b)and (c) (relating to equity
incentive compensation) shall be made within 10 days following
the later of (i) the date that the long term and/or short-term
incentive compensation would have been paid if the
Participant’s Termination Date had not occurred, and
(ii) the date on which the conditions of paragraph 6 are
satisfied.
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Notwithstanding
any other provision of this Agreement, if the requirements of
paragraph 6 are not satisfied on or before March 1st of the
calendar year following the calendar year in which the
Executive’s Termination Date occurs, the Executive shall not
be entitled to any payments or benefits under this
Agreement.
6. Waiver
and Release . The Executive shall not be entitled to any
payments or benefits under this Agreement
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