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Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made as of the date written below by and between WEIRTON
STEEL CORPORATION, a Delaware corporation with its principal executive offices
located at Three Springs Drive, Weirton, West Virginia 26062 (hereinafter called
the "Corporation") and the individual employee whose name and address appear on
the signature page hereto (hereinafter called "Employee").
The parties hereto agree as follows:
First: Term and Duties: The term of this Agreement shall commence on
the date hereof and shall continue until terminated in accordance with Paragraph
Second or Paragraph Twelfth. During the term hereof, Employee shall serve as a
full-time, salaried employee of the Corporation. Employee's duties, title,
salary and other benefits shall be as agreed upon from time to time between
Employee and the Corporation.
Second: Eligibility for Termination Benefits: (a) Subject to paragraph
(d) of Paragraph Third, if Employee's employment with the Corporation is
terminated by the Corporation without just cause, Employee shall receive such
benefits hereunder ("Termination Benefits") as determined in accordance with
Paragraph Third, provided Employee, if requested, remains in the employment of
the Corporation for a period not exceeding 60 days following receipt of a
written notice of such termination. For purposes of this Agreement, termination
of Employee's employment by the Corporation shall constitute a termination for
"just cause" only if such termination is for one of the following reasons: (i)
conviction of a felony punishable by a prison sentence of more than one year;
(ii) habitual use of alcohol to the extent that any of such uses materially
interferes with Employee's performance of his duties; (iii) refusal or failure,
after notice, by Employee to perform or discharge duties and responsibilities
appropriate to his position, which refusal or failure amounts to an extended and
gross neglect of his duties to the Corporation; (iv) breach of Paragraph Fourth
(c) of this Agreement; or (v) breach of any confidentiality agreement between
the Corporation and the Employee. Except as otherwise specifically set forth in
this Agreement or as otherwise prohibited by law, all rights of Employee, and
all obligations of the Corporation under this Agreement, shall cease and
terminate on, and as of, the date of termination of employment for just cause.
(b) The Corporation shall be deemed to have agreed to a
termination in accordance with paragraph (a) of this Paragraph Second from and
after the date (i) the Employee is assigned duties or responsibilities
significantly inconsistent with and less than the Employee's position, duties,
responsibilities or status with the Corporation as in effect upon execution of
this Agreement, (ii) the Employee's base salary, excluding any bonus or other
compensation derived from any employee benefit plan, is ever reduced below any
level attained by the Employee, or (iii) the Employee is required to reside
other than in the Greater Pittsburgh Area in order to perform his duties for the
Corporation; provided, that such action is taken without the Employee's consent,
and within 30 days after the occurrence of any such event the Employee notifies
the Corporation that he is so deeming the Corporation to have elected to
terminate his
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employment, whereupon the Corporation shall be deemed to have terminated such
employment as of the date of any such action or the date of such notice at the
option of the Employee. If the date of termination is deemed to be a date
earlier than the date of such notice, and the Corporation, upon receipt of such
notice, promptly takes all actions hereunder required in the event of such
termination, no intervening delay in taking such actions may be construed as a
violation of this Agreement.
Third: Amount and Duration of Termination Benefits:
(a) Upon the termination of Employee's employment on any date
in accordance with Paragraph Second (the "Termination Date"), Employee shall be
treated as being an inactive employee for 24 months following the Termination
Date, and Employee shall receive, within 10 days of the Termination Date, a
total of 24 months base salary (excluding vacation or special pay) in effect at
the Termination Date (the "Lump Sum Payment"), calculated as follows, where:
X is 24 months of Employee's base salary; and
Y is any applicable federal, state or local tax or liability
imposed on Employee as a result of the Lump Sum Payment,
including, without limitation, social security taxes,
income taxes and excise taxes, which amount shall be
withheld by Corporation and paid by Corporation to the
appropriate agency for and on behalf of Employee.
Then, LUMP SUM PAYMENT = X + Y.
It is the intent of the parties that the foregoing Lump Sum Payment calculation
shall result in Employee's receipt of an amount equal to 24 months of Employee's
base salary net of all applicable federal, state and local taxes, and
Corporation's payment to the appropriate taxing authority of any applicable
federal, state or local tax or liability imposed on Employee. Furthermore, for a
period of 24 months following the Termination Date, the Corporation shall (i)
continue to provide coverage for Employee and applicable dependents under all
benefit plans of the Corporation providing life insurance or health, disability,
hospitalization and major medical insurance at such levels as are not less than
those in effect at the time of the Termination Date; and (ii) to the extent
allowable under applicable law, cause Employee to continue to earn service
credit for all purposes under any pension or retirement plan maintained by the
Corporation in which Employee participated at the time of the Termination Date;
provided, however, that the coverage referred to in clause (i) shall be
suspended during any period in which and to the extent Employee is eligible for
similar coverage under another employer plan unless such suspension would
violate the terms of any such plan. Notwithstanding the above, the Corporation
shall not be obligated as provided in this Paragraph Third during any period
when employee does not comply with Paragraph Fourth. For all other purposes,
Employee's employment shall terminate on the Termination Date.
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(b) In the event Employee's employment is terminated by the
Corporation prior to the end of any fiscal year without just cause, Employee
shall receive his accrued bonus, if any, and the bonus to which Employee would
have otherwise been entitled, if any, for the fiscal year in which termination
occurs shall be pro rated by multiplying the bonus amount by a fraction, the
numerator of which is the number of days elapsed in the fiscal year up to and
including the date termination becomes effective and the denominator is 365. If
Employee's employment is terminated for just cause or by Employee, no bonus
shall be paid with respect to the fiscal year in which such termination occurs.
(c) Nothing in paragraph (a) of this Paragraph Third shall be
construed to require the Corporation to maintain any employee or management
benefit program solely for the purpose of covering or providing benefits to
Employee.
(d) The Corporation shall promptly reimburse Employee for the
reasonable legal fees and expenses incurred by Employee in connection with
enforcing any right of Employee pursuant to paragraph (a) or (b) of Paragraph
Second, paragraph (a) of this Paragraph Third or Paragraph Tenth; provided,
however, that the Corporation will only reimburse Employee for such legal fees
and expenses if, in connection with enforcing any right of Employee pursuant to
this Agreement, either (i) a judgment has been rendered in favor of Employee by
an arbitrator or a duly authorized court of law, or (ii) the Corporation and
Employee have entered into a settlement agreement providing for the payment to
Employee of any or all amounts due hereunder.
(e) Notwithstanding any other provision of this Agreement, if
the Employee's employment with the Corporation is terminated for any reason and
(i) the Employee has attained 65 years of age, (ii) for the 2-year period
immediately prior to such termination the Employee is employed in a bona fide
executive or a high policy-making position and (iii) the Employee is entitled to
an immediate nonforfeitable annual retirement benefit from a pension,
profit-sharing, savings, or deferred compensation plan, or any combination of
such plans, of the Corporation, which equals in the aggregate, at least $44,000,
the Employee will not be entitled to any Termination Benefits hereunder.
Fourth: Confidentiality and Transfer of Intellectual Property
Rights and Interests:
(a) Employee shall not, during the term hereof or subsequent
to the Termination Date, divulge, furnish or make accessible to anyone
(otherwise than as consented to by the Corporation) any knowledge or
information, techniques, plans, trade or business secrets or confidential
information relating to the business secrets or confidential information
relating to the business of the Corporation or with respect to any other
confidential or secret aspect of the business of the Corporation, nor shall
Employee make any use of the same for his own purposes or for the benefit of
anyone under any circumstances; provided that, after the Termination Date, these
restrictions shall not apply to such knowledge, techniques, plans, trade or
business secrets or confidential information which is then in, or subsequently
becomes part of, the public domain, except because of disclosure by Employee
without the Corporation's consent.
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(b) Employee shall immediately, upon termination and demand by
the Corporation, assign, transfer and convey to the Corporation any and all
copyright, patent and intellectual property rights and like interests which are
obtained by Employee during the term of his employment with Corporation and
which relate to methods, apparatus, designs, products, processes or devices,
sold, leased, used or under consideration or development by the Corporation, or
which otherwise relate to or pertain to the business, functions or operations of
the Corporation. Employee shall execute any and all forms, documents and
acknowledgments prepared by the Corporation for the purpose of assigning,
transferring and conveying such copyright, patent and intellectual property
rights and like interests.
(c) For the period commencing on the Termination Date and
continuing for one year thereafter, the Employee will not, in any form,
disparage the Corporation, its officers or directors or otherwise make comment
adverse to the Corporation concerning any aspect of the business or practices,
past or then present, of the Corporation.
(d) It is the desire of the parties that the provisions of
this Paragraph Fourth be enforced to the fullest extent permissible under the
laws and public policies in each jurisdiction in which enforcement might be
sought. Accordingly, if any particular portion of this Paragraph Fourth be
adjudicated as invalid or unenforceable, this Paragraph Fourth shall be deemed
amended to delete therefrom such portion so adjudicated, such deletion to apply
only with respect to the operation of this Paragraph Fourth in the particular
jurisdiction so adjudicating. If there is a breach or threatened breach of this
Paragraph Fourth by Employee, the Corporation shall be entitled to an injunction
restraining Employee from such breach, but nothing herein shall be construed as
prohibiting the Corporation from pursuing any other remedies for such breach or
threatened breach.
Fifth: Disability: If Employee is unable to render full-time
services to the Corporation of the character required to perform the duties of
his employment with the Corporation with reasonable efficiency for a period of
six consecutive months, commencing after the date hereof, by reason of illness,
disability or incapacity and the Corporation terminates Employee's employment
thereafter, Employee shall not be entitled to any Termination Benefits
hereunder; provided, that this Paragraph Fifth shall not apply in any case where
Employee, upon such termination, would not qualify under any program of
long-term disability benefits provided by the Corporation.
Sixth: Waiver of Breach: A waiver by the Corporation or
Employee of a breach of any provision of this Agreement by the other party shall
be in writing and shall not operate or be construed as a waiver of any
subsequent breach by the other party.
Seventh: Entire Agreement: This Agreement contains the entire
understanding and agreement between the parties and cannot be amended, modified
or supplemented in any respect, except by an agreement in writing signed by the
party against whom enforcement of any amendment, modification or supplement is
sought.
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Eighth: Successors and Assigns: This Agreement shall inure to
the benefit of and be binding upon the Corporation and its successors and
assigns including, without limitation, any corporation or other entity which may
acquire all or substantially all of the capital stock, assets and/or business of
the Corporation or with or into which the Corporation may be consolidated or
merged, and Employee, his heirs, executors, administrators and legal
representatives.
Ninth: Governing Law: This Agreement shall be governed by the
laws of the State of Delaware, without regard to its principals of conflicts of
laws.
Tenth: Arbitration: Any dispute between the Employee and the
Corporation arising under this Agreement, whether or not a case or controversy,
shall be resolved solely by arbitration in Pittsburgh, Pennsylvania in
accordance with the rules of the American Arbitration Association, and judgment
upon any award may be entered in any court having jurisdiction thereof.
Eleventh: Severability: If any provision of this Agreement or
the application thereof to any circumstance shall to any extent be held invalid
or unenforceable, the remainder of this Agreement shall not be affected thereby,
and shall be valid and enforceable to the fullest extent permitted by law, but
only if and to the extent such enforcement would not materially and adversely
frustrate the parties' essential objectives as expressed herein.
Twelfth: Termination of Term of Agreement: If the Employee, in
the reasonable opinion of the Corporation, breaches Paragraph Fourth (c) of this
Agreement by disparaging the Corporation, its officers or directors or breaches
a confidentiality agreement between the Corporation and the Employee, which are
respectively defined as events of just cause in Paragraphs 2(a)(iv) and (v) of
this Agreement, the Corporation, in its sole discretion and without waiving any
other right it has or may have at law, under this Agreement or under any other
agreement or policy applicable to the Employee, may provide written notice to
the Employee that the term of this Agreement is ended immediately upon delivery
of such notice. The termination of the term of this Agreement shall not be a
reduction in position, duties, responsibilities, or status of the Employee with
the Corporation under Paragraph Second or constructive or actual discharge of
the Employee from employment with the Corporation for purposes of this
Agreement. No Termination Benefits under this Agreement will be due or payable
in connection with or as a result of delivery of the notice ending the term of
this Agreement. If a notice of the termination of the term of this Agreement is
delivered to the Employee, the Employee will be an employee at will of the
Corporation without benefit of this or any other employment agreement or
representation of continued employment, express or implied.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day written below.
WEIRTON STEEL CORPORATION
Date: 3/23/00 By: /s/ David L. Robertson
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Title: Exec. V.P.-Human Resources & Corp. Law
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EMPLOYEE:
Date: 3/23/00 Name: /s/ Earl E. Davis, Jr.
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Address: 501 St. Joseph Drive
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Steubenville, OH 43952
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