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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT effective as of the 24th day of December, 1998, by
and between WHEELING-PITTSBURGH STEEL CORPORATION ("WPSC"), a Delaware
corporation with a principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxx Xxxxxxxx, 00000, WHX CORPORATION ("WHX"), a Delaware corporation with a
principal place of business at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
and WHEELING-PITTSBURGH CORPORATION ("WPC"), a Delaware corporation with a
principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxx Xxxxxxxx,
00000 (WPSC, WHX and WPC are collectively referred to as the "Company") and Xxxx
X. Xxxxxx (the "Executive").
WHEREAS, the Executive is employed by the Company pursuant to an
Employment Agreement dated as of October 17, 1997 (the "Initial Employment
Agreement") and the parties hereto each desire to amend and restate the Initial
Employment Agreement upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto do agree as follows:
1. EMPLOYMENT.
(a) The Company hereby employs the Executive, and the
Executive hereby accepts such employment, as Executive Vice President and Chief
Financial Officer of WPC and WPSC and Vice President of WHX, with his principal
office being located in either Pittsburgh,
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Pennsylvania, Wheeling, West Virginia or in a geographic area around the
Pittsburgh, Pennsylvania area no farther in distance than Wheeling, West
Virginia, upon the terms and subject to the conditions contained herein.
(b) Executive agrees that effective upon an Initial Public
Offering (as hereinafter defined) or Sale Transaction (as hereinafter defined)
of WPC, Executive will resign as an officer of WHX or, in the case of an Initial
Public Offering or Sale Transaction of WPSC, as an officer of WPC also.
(c) WPSC, WPC and WHX represent and warrant to Executive that
this Agreement has been duly and validly authorized and executed by and on
behalf of each of them in accordance with their respective Certificate of
Incorporation and By-Laws and that this Agreement constitutes the lawful and
valid obligation of WPSC, WPC and WHX enforceable against each of WPSC, WPC and
WHX in accordance with its terms.
2. DUTIES.
(a) The Executive shall perform all duties of the positions
referenced in paragraph 1 of this Agreement consistent with the powers and
duties of such offices set forth in WPSC's, WPC's or WHX's, as appropriate,
By-Laws, as well as any other duties, commensurate with the Executive's
positions that are assigned by the Board of Directors of WPSC, WPC or WHX.
(b) Throughout his employment hereunder, Executive shall
devote his full time, attention, knowledge and skills during reasonable business
hours in furtherance of the business of the Company and will faithfully,
diligently and to the best of his ability perform the duties described above and
further the best interests of the Company or its subsidiaries. During
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his employment, the Executive shall not engage, and shall not solicit any
employees of the Company to engage, in any commercial activities which are in
any way in competition with the activities of the Company or its subsidiaries,
or which may in any way interfere with the performance of his duties or
responsibilities to the Company.
(c) The Executive shall at all times be subject to, observe
and carry out such rules, regulations, policies, directions and restrictions as
the Company, consistent with Executive's rights and duties under this Agreement,
may from time to time establish and those imposed by law.
3. EXECUTIVE COVENANTS. In order to induce the Company to enter into
this Agreement, the Executive hereby agrees as follows:
(a) Except when disclosure is in the interest of the Company
or is compelled by law, or disclosure is consented to or directed by the
Chairman or the Board of Directors (the "Board") of WPC, WHX or WPSC, the
Executive shall keep confidential and shall not divulge to any other person or
entity, during the term of the Executive's employment or thereafter, any of the
business secrets or other confidential information regarding the Company or the
Company's other subsidiaries which have not otherwise become public knowledge.
(b) All papers, books and records of every kind and
description relating to the business and affairs of the Company, whether or not
prepared by the Executive, shall be the sole and exclusive property of the
Company, and the Executive shall surrender them to the Company at any time upon
request by the Chairman or the Board of WPC, WHX or WPSC.
(c) During the term of Executive's employment hereunder, and
for a period of three (3) years thereafter, the Executive shall not, without the
prior written consent of the Board
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of WHX (i) participate as a director, stockholder or partner, or have any direct
or indirect financial interest as creditor, in any business which directly or
indirectly competes, within the United States of America, with the Company or
the Company's other subsidiaries which exist now or as of the date of the
termination of this Agreement (the "Existing Subsidiaries"); provided, however,
that nothing in this Agreement shall restrict the Executive from holding up to
two (2%) percent of the outstanding capital stock or other securities of any
publicly traded entity; (ii) solicit any customers of the Company or its
Existing Subsidiaries on behalf of himself, or any other person, firm or
company; or (iii) directly or indirectly, act in the capacity of an executive
officer, employee or in any other capacity for any company or other entity which
competes with WPSC in the carbon steel manufacturing industry and which has at
least 5% of its annual dollar sales comprised of products which directly compete
with the Company's or the Existing Subsidiaries' products; provided, however,
that nothing in this paragraph 3(c) shall prevent the Executive from holding or
maintaining any positions or interests held by him subsequent hereto with the
consent of the Board of WHX (or the Board of WPC from and after the consummation
of an Initial Public Offering or Sale Transaction of WPC or the Board of WPSC
from and after the consummation of an Initial Public Offering or Sale
Transaction by WPSC.
(d) The parties agree that the Executive's services are unique
and that any breach or threatened breach of the provisions of this Section 3
will cause irreparable injury to the Company and that money damages will not
provide an adequate remedy. Accordingly, the Company shall, in addition to other
remedies provided by law, be entitled to such equitable and injunctive relief as
may be necessary to enforce the provisions of this Section 3 against the
Executive or any other person or entity participating in such breach or
threatened breach.
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Nothing contained herein shall be construed as prohibiting the Company from
pursuing any other and additional remedies available to it, at law or in equity,
for such breach or threatened breach including any recovery of damages from the
Executive or termination of his employment as provided in Paragraph 9(b).
4. BASE SALARY AND BONUSES. As full compensation for Executive's services
hereunder and in exchange for his promises contained herein, the Company shall
compensate the Executive in the following manner (subject to Paragraph 4(c)):
(a) BASE SALARY. The Company shall compensate Executive at the
base salary rate of Two Hundred Seventy-Five Thousand United States Dollars
($275,000 U.S.) per annum, payable in equal installments on the same basis as
other senior salaried officers of the Company. Such annual salary may be
increased in the future by such amounts and at such times as the Board of WHX or
the Compensation Committee thereof (or the Board or Compensation Committee of
(x) WPC from and after the consummation of an Initial Public Offering or Sale
Transaction of WPC or (y) WPSC from and after the consummation of an Initial
Public Offering or Sale Transaction of WPSC) shall deem appropriate in its sole
discretion.
(b) BONUSES.
(i) SIGNING BONUS: The Executive has received $90,000 of a
signing bonus of Xxx Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxxx
Dollars ($120,000 U.S.) in accordance with the Initial
Employment Agreement, the receipt of which is hereby
acknowledged. The Executive shall be entitled to receive
the balance thereof of $30,000 on October 17, 1999.
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(ii) ANNUAL BONUSES: Beginning with the calendar year 1998
and in each year or portion thereof thereafter during the
term of this Agreement, the Board of WHX or the
Compensation Committee of WHX (or the Board or
Compensation Committee of (x) WPC from and after the
consummation of the Initial Public Offering or Sale
Transaction of WPC or (y) WPSC from and after the
consummation of an Initial Public Offering or Sale
Transaction of WPSC) shall grant the Executive a bonus in
accordance with the terms of WPSC's Management Incentive
Program.
(c) WITHHOLDINGS. The amounts set forth in subparagraphs (a)
and (b) above shall be subject to appropriate payroll withholding and any
similar deductions required by law.
(d) INITIAL PUBLIC OFFERING; SALE. During the term of this
Agreement, upon (i) the consummation of an underwritten initial public offering
under the Securities Act of 1933, as amended (an "Initial Public Offering,"
including for this purpose a "spin-off" that creates publicly traded securities)
of WPC or WPSC (or any successor or assign of either entity) or (ii)(x) the,
direct or indirect, sale, lease, exchange or other transfer of all or
substantially all (50% or more) of the assets or capital stock of WPC or WPSC to
any individual, corporation, partnership, trust or other entity or organization
(a "Person") or group of Persons acting in concert as a partnership or other
group (a "Group of Persons") other than a Person (an "Affiliate") controlling,
controlled by or under common control with, any of WPC, WHX or WPSC, as the case
may be, or (y) the merger, consolidation or other business combination of WPC or
WPSC with or into another corporation with the effect that the shareholders of
WPC or WPSC, as the case may be, immediately prior to the business combination
hold 50% or less of
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the combined voting power of the then outstanding securities of the surviving
Person of such merger ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors ((ii)(x) or
(ii)(y) being a "Sale Transaction"), the Company shall pay to the Executive,
within thirty (30) days after the date of the closing of the Initial Public
Offering or Sale Transaction, the sum of (i) One Million Dollars ($1,000,000)
(the "Payment") plus, if all or any portion of the Payment is subject to the tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Excise Tax"), an additional amount (the "Gross Up Amount"), so that the amount
retained by the Executive (net of any Excise Tax on the Payment and the Gross Up
Amount and any federal, state and local income tax on the Gross Up Amount
(calculated using the highest marginal rates applicable to individuals)) shall
be equal to the Payment and (ii) Eight Hundred Twenty-Five Thousand Dollars
($825,000) (the "Additional Payment"). In the event that during the term of this
Agreement and prior to an Initial Public Offering or Sale Transaction a WHX
Change of Control (as hereinafter defined) shall occur, the Company shall pay to
the Executive, within thirty (30) days after the date of the WHX Change of
Control, the Additional Payment. For purposes of this Agreement, WHX Change of
Control means (i) the direct or indirect, sale, lease, exchange or other
transfer of all or substantially all (50% or more) of the assets of WHX to a
Person or Group of Persons other than an Affiliate controlling, controlled by or
under common control with, WHX, (ii) the merger, consolidation or other business
combination of WHX with or into another corporation with the effect that the
stockholders of WHX immediately prior to the business combination hold 50% or
less of the combined voting power of the then outstanding securities of the
surviving Person of such merger ordinarily (and apart from rights accruing under
special circumstances) having the right to vote in
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the election of directors, (iii) the replacement of a majority of the Board of
WHX over any period of two years or less, from the directors who constituted the
Board of WHX at the beginning of such period, and such replacement(s) shall not
have been approved by the Board of WHX as constituted at the beginning of such
period, (iv) a Person or Group of Persons shall, as a result of a tender or
exchange offer, open market purchases, privately negotiated purchases or
otherwise, have become the beneficial owner (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") of securities of WHX representing 50% or more of the combined voting power
of the then outstanding securities of WHX ordinarily (and apart from rights
accruing under special circumstances) having the right to vote in the election
of directors. If an Initial Public Offering or Sale Transaction shall occur
after a WHX Change of Control and the Executive shall have received or shall
have the right to receive the Additional Payment (but for the 30 day payment
period) then, upon an Initial Public Offering or Sale Transaction the Executive
shall only be entitled to receive the Payment and Gross Up Amount as applicable.
From and after the consummation of an Initial Public Offering or Sale
Transaction involving WPC or WPSC, WHX, and in the case of an Initial Public
Offering or a Sale Transaction involving WPSC, WPC and WHX, shall be relieved of
all obligations under this Agreement (other than the obligation to make the
Payment required by this Paragraph 4), with no further action required by WHX
and WPC, as appropriate, to terminate its obligations hereunder. The Payment
shall not preclude, set off or be in lieu of Executive's participation in any
option pool created by WPC or WPSC in connection with an Initial Public Offering
or Sale Transaction.
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5. LONG-TERM INCENTIVE PLAN. The Executive shall be entitled to
participate, to the extent he is eligible under the terms and conditions
thereof, in any stock option plan, stock award plan, omnibus stock plan, or
similar incentive plan currently in existence or hereafter established by the
Company, in the manner and to the same extent as the Company's other senior
executive officers, such participation to include 40,000 options under the 1991
WPC Incentive and Nonqualified Stock Option Plan ("1991 Plan"), which options
were granted upon the effectiveness of the Initial Employment Agreement, in
accordance with the provisions of the 1991 Plan. Awards to the Executive under
any such plan shall be made as provided in such plan and at such times and in
such amounts as shall be determined in the sole discretion reasonably exercised
of the Stock Option Committee of WHX subject to confirmation by the Board of WHX
or the Compensation Committee of WHX (or the Board or Compensation Committee of
WPC from and after the consummation of an Initial Public Offering or Sale
Transaction of WPC or the Board or Compensation Committee of WPSC from and after
the consummation of an Initial Public Offering or Sale Transaction of WPSC).
Except as provided above, the Executive shall not be entitled to participate in
any bonus incentive or similar plan for salaried employees of the Company and
Executive's right to receive a bonus shall be exclusively determined by the
provisions of Paragraph 4(b) hereof.
6. BENEFIT PLANS. During the term of his employment, the Executive shall
be entitled to participate in the Company's management employee benefits and
retirement plans, as they are in existence on the date of this Agreement, or as
they may be amended or added hereafter, to the same extent as the Company's
other senior executive officers. The Company shall be under no
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obligation solely as a result of this Agreement to institute or continue the
existence of any employee benefit plan.
7. OTHER BENEFITS. The Executive shall be provided the following
additional benefits:
(a) LEASED AUTOMOBILE. A leased Buick, Oldsmobile, Mercury or
comparable automobile of United States manufacture for his business and personal
use. The Company shall keep such automobile adequately insured and will pay or
reimburse the Executive for the cost of maintenance, repair and gasoline for
such automobile.
(b) CLUB MEMBERSHIPS. Reimbursement of the Executive for the
cost of his and his immediate family's membership in one country club, including
reimbursement of a $10,000 voting transfer fee to be paid or payable by the
Executive, and his membership in one business club, and for his business-related
use for both clubs.
(c) LEGAL AND TAX ADVICE. In recognition of the Executive's
need to carefully consider the terms herein, the reimbursement of Executive for
reasonable legal and tax advice, sought by him relative to this Agreement, which
is incurred prior to his execution of this Agreement, up to a maximum of Twenty
Thousand United States Dollars ($20,000 U.S.).
(d) BUSINESS EXPENSE. Reimbursement of the Executive, upon
proper accounting, for reasonable expenses and disbursements incurred by him in
the course of the performance of his duties hereunder.
(e) VACATION. The Executive shall be entitled to four (4)
weeks of vacation each year of this Agreement or such longer period as shall be
provided to senior executives of the Company, without reduction in salary.
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(f) ANNUAL PHYSICAL. The Company shall pay the cost, or
reimburse Executive for any cost not covered by health insurance, of one
comprehensive physical examination during each year of this Agreement.
8. SUPPLEMENTAL PENSION. As additional compensation, the Company will
provide nonqualified deferred compensation to the Executive after termination of
his employment. The amount of the deferred compensation will be measured solely
by the cash surrender value, at the time payment of the deferred compensation is
due, of one or more life insurance contracts (as defined in Internal Revenue
Code ss. 7702) on the life of the Executive, purchased by or on behalf of the
Company solely with the annual premiums described below. Such life insurance
contracts shall provide such insurance coverage and contract terms (consistent
with the premium limits described below), and shall be purchased from such one
or more insurance companies, as shall be acceptable to the Executive.
On the first business day of each calendar year during the Executive's
service under this Agreement (or under the Initial Employment Agreement), the
Company shall provide for the payment of total premiums, under all such life
insurance contracts in the aggregate, equal to the sum of:
1. Twenty-Five Thousand Dollars ($25,000) annual lump sum
provided by the Company without reduction of the Executive's
regular salary or performance bonus otherwise payable under
this Agreement (or under the Initial Employment Agreement)
during the calendar year.
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2. An additional annual amount equal to the amount, if any, by
which the Executive has elected to have his regular salary,
otherwise payable in cash during the calendar year, reduced
for this purpose.
3. An additional annual amount equal to the amount, if any, by
which the Executive has elected to have his performance bonus
(if any), otherwise payable in cash during the calendar year,
reduced for this purpose.
The Executive shall elect in writing, no later than the end of
the preceding calendar year, the specific amounts (or definite formula to
determine the specific amounts) of additional premiums to be paid for in each
calendar year by reduction of his regular salary or bonus payments. However,
such additional premium amounts shall be limited in the aggregate (or, at the
Executive's election, insurance coverage shall be augmented as necessary) so
that the additional premium amount applied to any insurance contract in any
calendar year is less than the amount that would cause such contract to be
classified as a modified endowment contract under Internal Revenue Code Section
7702A.
The Company or the Deferred Compensation Trust described hereinafter
(the "Deferred Compensation Trust" or "Trust") shall be the sole owner of all
such life insurance contracts, except that the Executive, at his election, shall
have the right to designate the beneficiary of death benefits under the
contracts.
In the event of the Executive's death while the life insurance
contracts are in force and owned by the Company or the Deferred Compensation
Trust, the insurance companies' payment of death benefits thereunder to the
Executive's designated beneficiary (the "Beneficiary") shall totally discharge
the Company's obligation under this Section 8, except that the Company or the
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Trust shall pay to such Beneficiary any salary or bonus reduction amounts
elected by the Executive for the calendar year in which his death occurs to the
extent that such amounts have not been paid to insurance companies as additional
premiums during that calendar year.
The Company will set aside assets in the Deferred Compensation Trust to
provide for the systematic funding, during the Executive's period of active
service, of the deferred compensation promised to the Executive under this
Agreement. Such Deferred Compensation Trust (which may also include assets set
aside to fund other similar deferred compensation obligations of the Company)
shall be irrevocable except in the event of the Company's subsequent bankruptcy
or insolvency, in which case the assets of the Trust shall be subject to the
claims of the Company's general creditors, including the Executive. The Company
intends, and the Executive acknowledges, that the Executive's rights under this
Agreement shall be solely those of a general creditor of the Company, and
nothing in this Agreement nor in any instruments creating the Deferred
Compensation Trust nor in any life insurance contract, shall be construed to
create any rights in the Executive superior to those of other general creditors
of the Company.
The Company intends that the Deferred Compensation Trust shall make all
payments due under this Agreement to the Executive or his Beneficiary, to the
extent the Trust is funded. The Executive acknowledges, on behalf of himself and
any Beneficiary claiming under him, that the Company is absolved of any
liability or responsibility for any payment due hereunder to the extent such
payment shall have been duly made to the Executive (or Beneficiary, as the case
may be) by the Deferred Compensation Trust.
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The deferred compensation provided hereunder shall be paid to the
Executive in accordance with the life insurance contracts obtained pursuant to
the first paragraph of this Section 8.
9. DURATION AND TERMINATION.
(a) DURATION. The term of this Agreement shall commence on the
date hereof and shall terminate on the third anniversary of the date hereof,
except as otherwise provided herein, and shall automatically be extended for
successive three-year terms unless earlier terminated pursuant to the provisions
hereof, provided that the Company and the Executive shall each have the right to
terminate this Agreement at the end of the initial term or any succeeding term
on not less than sixty (60) days prior written notice to the other party (in
which event all rights and benefits of Executive hereunder other than the
supplemental pension benefit under Section 8 shall cease upon such termination's
effective date). Upon the termination of this Agreement for any reason, the
Executive shall be deemed to have resigned from all officer and director
positions with the Company and its Existing Subsidiaries.
(b) TERMINATION AT ANY TIME BY COMPANY. This Agreement shall
be terminable by the Company at any time for any reason, including death or
Disability (as hereinafter defined) of the Executive, upon not less than 30
days' prior written notice to the Executive and all rights and benefits of the
Executive hereunder (other than those arising under Section 10 hereof) shall
cease, except that the Executive will have the right to receive from the Company
(i) $825,000 immediately following the date of termination (less an amount equal
to the portion of the Twenty-Five Thousand ($25,000) Dollar per annum payment
made pursuant to Section 8 for the calendar year in which termination of
employment occurred which represents
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the pro-rata portion of the payment for the balance of such calendar year, I.E.,
if the last date of employment is July 1, then Twelve Thousand and Five Hundred
($12,500) Dollars shall be deducted from the Eight Hundred Twenty-Five Thousand
($825,000) Dollars payment obligation) within thirty (30) days of delivery of
the notice of termination (the "Termination Payment"), (ii) all amounts accrued
but unpaid hereunder up to and including the date of termination including,
without limitation, any pro rata portion of the Executive's salary or bonus
remaining unpaid as of the date of termination, (iii) all of the supplemental
pension benefits accrued under Section 8 and (iv) the continuation of all
medical insurance provided to the Executive as contemplated by Section 6 hereof
for a period of one (1) year following the termination date PROVIDED HOWEVER
that the Company shall not be required to make the Termination Payment under
this Section 9(b)(i), if prior to the date of termination of this Agreement by
the Company pursuant to this Section 9(b), the Executive shall have previously
received or shall have the right to receive (but for the passage of the 30 day
payment period) the Additional Payment pursuant to Section 4(d) of the
Agreement. Notwithstanding the foregoing, if the Company terminates this
Agreement "for cause", then no Termination Payment shall be made to the
Executive and all rights, benefits and obligations of the Executive under this
Agreement shall cease, except the Executive's rights under Sections 8, 9(b)(ii),
9(b)(iii) and 10 hereof. "For cause" shall mean: (i) the Executive's willful and
material breach in respect of his duties under this Agreement if such breach
continues unremedied for thirty (30) days after written notice thereof from the
Board of WPC, WHX or WPSC to the Executive specifying the acts constituting the
breach and requesting that they be remedied; or (ii) the Executive is convicted
or pleads guilty to a felony, during the employment period other than for
conduct
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undertaken in good faith in furtherance of the interests of the Company.
"Disability" shall mean that due to illness, accident or other physical or
mental incapacity, the Board of WPC, WHX or WPSC has in good faith determined
that the Executive is unable to substantially perform his usual and customary
duties under this Agreement for more than four (4) consecutive months or six (6)
months in any calendar year. During any period that the Executive fails to
perform his duties hereunder as a result of incapacity due to Disability prior
to the Executive's termination, the Executive shall continue to receive his full
base salary, together with all benefits provided in this Agreement.
(c) RIGHTS OF TERMINATION BY EXECUTIVE. The Executive shall
have the right, by written notice to the Company, to elect to terminate this
Agreement, in which event the Company shall pay to the Executive, within thirty
(30) days after the date of termination of the Executive's employment, the sum
of Eight Hundred Twenty-Five Thousand Dollars ($825,000) (less an amount equal
to the portion of the Twenty-Five Thousand ($25,000) Dollar per annum payment
made pursuant to Section 8 for the calendar year in which termination of
employment occurred which represents the pro-rata portion of the payment for the
balance of such calendar year, I.E., if the last date of employment is July 1,
then Twelve Thousand and Five Hundred ($12,500) Dollars shall be deducted from
the Eight Hundred Twenty-Five Thousand ($825,000) Dollar payment obligation), if
the Executive is (A) demoted (other than his removal as an officer or director
of WHX or WPC as provided in this Agreement) or (B) no longer holds the office
of Executive Vice President or Chief Financial Officer of WPSC or WPC (except as
otherwise provided in this Agreement in the case of WPC). Notwithstanding the
provisions of the previous sentence of this Section 9(c), in the event the
Executive terminates this Agreement pursuant to this Section 9(c)
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and the Executive shall have previously received or shall have the right to
receive the Additional Payment pursuant to Section 4(d) of this Agreement (but
for the passage of the thirty (30) day payment period), then the Executive shall
not receive the Eight Hundred Twenty-Five Thousand ($825,000) Dollar payment
pursuant to this Section 9(c) and shall only receive the payment and benefit set
forth in the next sentence of this Section 9(c). In the event that Executive
makes the election referred to in Section 9(c), the Executive shall be entitled
to receive from the Company the items set forth in Paragraph 9(b)(ii) through
9(b)(iv) within sixty (60) days of receipt by the Company of a written notice of
Executive's election.
10. INDEMNIFICATION. The Company shall defend and hold the Executive
harmless to the fullest extent permitted by applicable law and the Company's
By-Laws and Certificate of Incorporation in connection with any claim, action,
suit, investigation or proceeding arising out of or relating to performance by
the Executive of services for, or action of the Executive as, or arising by
reason of the fact that the Executive is or was, a Director, officer, employee
or agent of the Company or any parent, subsidiary or affiliate of the Company,
or of any other person or enterprise at the Company's request. 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 any undertaking by or on behalf of 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
do not limit any rights accruing to the Executive under any other agreement or
contract or under applicable law.
11. SUCCESSORS AND ASSIGNS. The rights and obligations of the Company
hereunder shall run in favor and be obligations of the Company, its successors
and assigns. The rights of the
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Executive hereunder shall inure to the benefit of the Executive's legal
representatives, executors, heirs and beneficiaries. Termination of Executive's
employment shall not operate to relieve him of any remaining obligations under
Section 3 hereof. The Company shall require any successor or assign (whether
direct or indirect, by purchase, merger, reorganization, consolidation,
acquisition of property or stock, liquidation or otherwise) to all or a
significant portion of the assets of the Company, by agreement in form and
substance satisfactory to the Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place.
Regardless of whether such agreement is executed by a successor, this Agreement
shall be binding upon any successor and assign in accordance with the operation
of law and such successor and assign shall be deemed the "Company" for purposes
of this Agreement.
12. ARBITRATION OF ALL DISPUTES.
(a) Any controversy or claim arising out of or relating to
this Agreement or the breach thereof (including the arbitrability of any
controversy or claim), shall be settled by arbitration in the City of
Pittsburgh, Commonwealth of Pennsylvania, by three arbitrators, one of whom
shall be appointed by the Company, one by the Executive and the third of whom
shall be appointed by the first two arbitrators. If the first two arbitrators
cannot agree on the appointment of a third arbitrator, then the third arbitrator
shall be appointed by the American Arbitration Association. The arbitration
shall be conducted in accordance with the rules of the American Arbitration
Association, except with respect to the selection of arbitrators which shall be
as provided in this Section 12. The cost of any arbitration proceeding hereunder
shall be borne equally by the Company and the Executive. The award of the
arbitrators shall be binding upon
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the parties. Judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
(b) In the event that it shall be necessary or desirable for
the Executive to retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of any or all of his rights under this
Agreement, and provided that the Executive substantially prevails in the
enforcement of such rights, the Company shall pay (or the Executive shall be
entitled to recover from the Company, as the case may be) the Executive's
reasonable attorneys' fees and costs and expenses in connection with the
enforcement of his rights, including the enforcement of any arbitration award,
up to $50,000 in the aggregate.
13. NOTICES. All notices, requests, demands and other communications hereunder
must be in writing and shall be deemed to have been duly given upon receipt if
delivered by hand, sent by telecopier or courier, and three (3) days after such
communication is mailed within the continental United States by first class
certified mail, return receipt requested, postage prepaid, to the other party,
in each case addressed as follows:
(a) if to WHX, WPC or WPSC, as the case may be:
WHX Corporation
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Secretary
Wheeling-Pittsburgh Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxx Xxxxxxxx 00000
Attn: Corporate Secretary
Wheeling-Pittsburgh Steel Corporation
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0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxx Xxxxxxxx 00000
Attn: Corporate Secretary
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx, Esquire
Xxxxxx Xxxxxxxx Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) if to the Executive:
Xxxx X. Xxxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
with a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxx, Esquire
Xxxx Xxxxx Xxxx & XxXxxx
000 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
Addresses may be changed by written notice sent to the other party at the last
recorded address of that party.
14. SEVERABILITY. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement.
15. PRIOR UNDERSTANDING. This Agreement embodies the entire understanding
of the parties hereto, and supersedes all other oral or written agreements or
understandings between them regarding the subject matter hereof, including
without limitation the Initial Employment Agreement. No change, alteration or
modification hereof may be made except in a writing, signed
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by all parties hereto. The headings in this Agreement are for convenience and
reference only and shall not be construed as part of this Agreement or to limit
or otherwise affect the meaning hereof.
16. EXECUTION IN COUNTERPARTS. This Agreement may be executed by the
parties hereto in counterparts, each of which shall be deemed to be original,
but all such counterparts shall constitute one and the same instrument, and all
signatures need not appear on any one counterpart.
17. CHOICE OF LAWS. Subject to the provisions of Paragraph 12 and without
regard to the effect of principles of conflicts of laws thereof, jurisdiction
over disputes with regard to this Agreement shall be exclusively in the courts
of the Commonwealth of Pennsylvania, and this Agreement shall be construed in
accordance with and governed by the laws of the Commonwealth of Pennsylvania.
18. THIRD PARTY BENEFICIARY. The provisions of this Agreement as to the
Company shall also be binding upon and inure to the benefit of WPSC.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
WHEELING-PITTSBURGH STEEL CORPORATION
By: /s/ Xxxx Xxxxx
-----------------------------------------------
Name: Xxxx Xxxxx
Title: Chairman
WHX CORPORATION
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President - General Counsel
WHEELING-PITTSBURGH CORPORATION
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
/s/ Xxxx X. Xxxxxx
--------------------------------------------------
Xxxx X. Xxxxxx
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