EXHIBIT 10.11
January 28, 1998
Jay M. Gratz
180 East Pearson, #6003
Chicago, Illinois 60611
Dear Mr. Gratz:
Inland Steel Industries, Inc. ("ISI") considers it essential to the best
interests of its stockholders to foster the continuous employment of key
management personnel of ISI and its subsidiaries (collectively, the "Company").
In this connection, the Board of Directors of ISI (the "Board") recognizes that,
as is the case with many publicly held corporations, the possibility of a change
in control may exist and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the departure or
distraction of management personnel to the detriment of ISI and its
stockholders.
The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a change in control of the Company. In order to induce you to
remain in the employ of the Company and in consideration of your agreement set
forth in Subsection 2(ii) hereof, ISI agrees that you shall receive the
severance benefits set forth in this letter agreement ("Agreement") in the event
your employment with the Company is terminated subsequent to a "change in
control of the Company" (as defined in Section 2 hereof) or in connection with a
"potential change in control of the Company" (as defined in Section 2 hereof)
under the circumstances described below. This Agreement shall constitute an
amendment and restatement of and shall supersede any prior agreement entered
into between you and ISI with respect to these matters. In the event that you
receive severance benefits hereunder, such benefits shall be in lieu of, and you
shall not be entitled to receive, any benefits or payments under any other
severance plan, policy or agreement of or with the Company. In addition, if you
are or become entitled to benefits from the Company pursuant to another
agreement providing for benefits on account of a change in control or the law of
a jurisdiction other than the United States or any state or territory thereof as
a result of an event for which benefits are payable to you pursuant this
Agreement, the benefits paid to you pursuant to this Agreement shall be reduced
by the amount paid to you pursuant to such other agreement or law.
1. Term of Agreement. This Agreement shall commence on the date hereof
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and shall continue in effect through December 31, 1998; provided, however, that
commencing on January 1, 1999 and each January 1 thereafter, the term of this
Agreement shall automatically be extended for
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one additional year unless, during the preceding year but not later than June 30
of such preceding year, ISI shall have given notice that it does not wish to
extend this Agreement. Notwithstanding the preceding sentence: (i) if your
employer is a direct or indirect subsidiary of ISI, this Agreement shall
terminate on the date on which ISI ceases to own, directly or indirectly, at
least 80 percent of your employer for any reason which does not constitute a
change in control of the Company, and (ii) if a change in control of the Company
or a potential change in control of the Company shall have occurred during the
original or extended term of this Agreement, this Agreement shall continue in
effect for a period of twenty-four (24) months beyond the month in which such
change in control or potential change in control of the Company occurred unless
earlier terminated under clause (i) next above.
2. Change in Control; Potential Change in Control. (i) No benefits shall
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be payable hereunder unless there shall have been a potential change in control
or a change in control of the Company, as set forth below. For purposes of this
Agreement, a "change in control of the Company" shall be deemed to have occurred
if:
(A) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
other than (w) the Company, (x) a trustee or other fiduciary holding voting
securities under an employee benefit plan of the Company, (y) an
underwriter temporarily holding voting securities pursuant to an offering
of such securities, or (z) a corporation owned, directly or indirectly, by
the securityholders of ISI in substantially the same proportions as their
ownership of voting securities of ISI, is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of voting securities of ISI (not including in the voting securities
beneficially owned by such person any voting securities acquired directly
from ISI or its affiliates) representing 40% or more of the combined voting
power of ISI's then outstanding voting securities;
(B) during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who at the
beginning of such period constitute the Board and any new director (other
than a director designated by a person who has entered into an agreement
with ISI to effect a transaction described in clauses (A), (C) or (D) of
this Subsection 2(i)) whose election by the Board or nomination for
election by ISI's securityholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination
for election was previously so approved ("Continuing Directors"), cease for
any reason to constitute a majority thereof;
(C) the holders of voting securities of ISI approve a merger or
consolidation of ISI with any other corporation, other than a merger or
consolidation which would result in the voting securities of ISI
outstanding immediately prior thereto continuing to represent (either
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by remaining outstanding or by being converted into voting securities of
the surviving entity), in combination with the ownership of any trustee or
other fiduciary holding voting securities under an employee benefit plan of
the Company, at least 60% of the combined voting power of the voting
securities of ISI or such surviving entity outstanding immediately after
such merger or consolidation, or a merger or consolidation effected to
implement a recapitalization of ISI (or similar transaction) in which no
person acquires more than 50% of the combined voting power of ISI's then
outstanding voting securities;
(D) the holders of voting securities of ISI approve a plan of
complete liquidation of ISI or an agreement for the sale or disposition by
ISI of all or substantially all of ISI's assets; or
(E) there occurs:
(x) a sale or disposition, directly or indirectly, other than to
a person described in subclause (w), (x) or (z) of clause (A) of this
Subsection 2(i), of voting securities of your employer, any direct or
indirect parent company of your employer or any company that is a
subsidiary of your employer and is also a significant subsidiary (as
defined below) of ISI (your employer and such a parent or subsidiary
being a "Related Company"), representing 50% or more of the combined
voting power of the securities of such Related Company then
outstanding;
(y) a merger or consolidation of a Related Company with any
other corporation, other than:
(1) a merger or consolidation which would result in the
voting securities of the Related Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity), in combination with the ownership of any
trustee or other fiduciary holding voting securities under an
employee benefit plan of the Company, at least 60% of the
combined voting power of the voting securities of the Related
Company or such surviving entity outstanding immediately after
such merger or consolidation;
(2) a merger or consolidation effected to implement a
recapitalization of the Related Company (or similar transaction)
in which no person acquires more than 50% of the combined voting
power of the Related Company's then outstanding voting
securities; or
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(3) a merger or consolidation which would result in 50% or
more of the combined voting power of the surviving company being
beneficially owned by ISI or by a majority owned direct or
indirect subsidiary of ISI; or
(z) the sale or disposition of all or substantially all the
assets of a Related Company to a person other than ISI or a majority
owned direct or indirect subsidiary of ISI.
Notwithstanding any other provision of this Agreement, no change in control of
the Company shall be deemed to have occurred under this Subsection 2(i) if (I)
such transaction includes or involves a sale to the public or a distribution to
the stockholders of ISI of more than 50% of the voting securities of your
employer or a direct or indirect parent of your employer, and (II) your employer
or a direct or indirect parent of your employer agrees to become a successor to
ISI under this Agreement or you are covered by an agreement providing for
benefits upon a change in control of your employer following an event described
clause (E). For purposes of this Agreement, the term "significant subsidiary"
has the meaning given to such term under Rule 405 of the Securities Act of 1933,
as amended.
(ii) For purposes of this Agreement, a "potential change in control of the
Company" shall be deemed to have occurred if:
(A) ISI enters into an agreement, the consummation of which would
result in the occurrence of a change in control of the Company;
(B) any person (including ISI) publicly announces an intention to
take or to consider taking actions which if consummated would constitute a
change in control of the Company;
(C) any person, other than (w) the Company, (x) a trustee or
other fiduciary holding voting securities under an employee benefit plan of
the Company, (y) an underwriter temporarily holding voting securities
pursuant to an offering of such securities, or (z) a corporation owned,
directly or indirectly, by the securityholders of ISI in substantially the
same proportions as their ownership of voting securities of ISI, who is or
becomes the beneficial owner, directly or indirectly, of voting securities
of ISI representing 9.5% or more of the combined voting power of ISI's then
outstanding voting securities, increases his beneficial ownership of such
securities by 5% or more over the percentage so owned by such person on the
date hereof; or
(D) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a potential change in control of the Company
has occurred.
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You agree that, subject to the terms and conditions of this Agreement, in the
event of a potential change in control of the Company, you will remain in the
employ of the Company until the earliest of (i) a date which is six (6) months
from the occurrence of such potential change in control of the Company, (ii) the
termination by you of your employment by reason of Disability or Retirement, as
defined in Subsection 3(i), or (iii) the occurrence of a change in control of
the Company. If your employment is terminated by the Company without Cause (as
defined in Subsection 3(ii) below) coincident with or prior to a change in
control of the Company and within twelve (12) months after the occurrence of a
potential change in control of the Company and a change in control of the
Company occurs within six (6) months after such termination, you shall be
entitled to the compensation and benefits hereunder as if your termination of
employment without Cause followed a change in control of the Company; provided,
however, that no benefits shall be payable under this sentence if prior to the
change in control of the Company, ISI ceased to own, directly or indirectly, at
least 80% of the voting securities of your employer.
(iii) The foregoing to the contrary notwithstanding, a change in control of
the Company shall not be deemed to have occurred with respect to you if:
(A) the event first giving rise to the potential change in control
of the Company involves a publicly announced transaction or publicly
announced proposed transaction which at the time of the announcement has
not been previously approved by the Board and you are "part of a purchasing
group" (as defined below) proposing the transaction;
(B) you are part of a purchasing group which consummates the change
in control transaction; or
(C) the change in control of the Company would otherwise occur under
Subsection 2(i)(D) due to the sale of a significant subsidiary, which
significant subsidiary constitutes all or substantially all of the assets
of ISI and you are not employed by ISI or the significant subsidiary which
is the subject of the transaction.
For purposes of this Agreement, you shall be deemed "part of a purchasing group"
if you are an equity participant or have agreed to become an equity participant
in the purchasing company or group (except for (A) passive ownership of less
than 1% of the stock of the purchasing company or (B) ownership of equity
participation in the purchasing company or group which is otherwise not deemed
to be significant, as determined prior to the change in control of the Company
by a majority of the non-employee Continuing Directors).
3. Termination Following Change in Control. If a change in control of
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the Company, as defined in Section 2 hereof, shall have occurred, you shall be
entitled to the benefits provided in Subsection 4(iii) hereof upon the
subsequent termination of your employment during the term of this
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Agreement unless such termination is (A) because of your death, Disability or
Retirement, (B) by the Company for Cause, or (C) by you other than for Good
Reason.
(i) Disability; Retirement. If, as a result of your incapacity due to
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physical or mental illness, you shall have been absent from the full-time
performance of your duties with the Company for six (6) consecutive months, and
within thirty (30) days after written notice of termination is given you shall
not have returned to the full-time performance of your duties, your employment
may be terminated for "Disability". Termination by the Company or you of your
employment based on "Retirement" shall mean termination on or after your normal
retirement age in accordance with the Company's retirement policy generally
applicable to its salaried employees or in accordance with any retirement
arrangement established with your consent with respect to you.
(ii) Cause. Termination by the Company of your employment for "Cause"
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shall mean termination upon (A) the willful and continued failure by you to
substantially perform your duties with the Company (other than any such failure
resulting from your incapacity due to physical or mental illness or any such
actual or anticipated failure after the issuance of a Notice of Termination by
you for Good Reason as defined in Subsections 3(iv) and 3(iii), respectively)
after a written demand for substantial performance is delivered to you by the
Board, which demand specifically identifies the manner in which the Board
believes that you have not substantially performed your duties, or (B) the
willful engaging by you in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise. For purposes of this
Subsection 3(ii), no act, or failure to act, on your part shall be deemed
"willful" unless done, or omitted to be done, by you not in good faith and
without reasonable belief that your action or omission was in the best interest
of the Company. Notwithstanding the foregoing, you shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
you a copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) of the entire membership of the Board at a meeting of the
Board called and held for such purpose (after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard before the Board),
finding that in the good faith opinion of the Board you were guilty of conduct
set forth above in clauses (A) or (B) of the first sentence of this Subsection
3(ii) and specifying the particulars thereof in detail.
(iii) Good Reason. You shall be entitled to terminate your employment for
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Good Reason. For purposes of this Agreement, "Good Reason" shall mean, without
your express written consent, the occurrence after a change in control of the
Company of any of the following circumstances unless, in the case of paragraphs
(A), (E), (F), (G) or (H), such circumstances are fully corrected prior to the
Date of Termination specified in the Notice of Termination, as defined in
Subsections 3(v) and 3(iv), respectively, given in respect thereof:
(A) the assignment to you of any duties inconsistent with your
status as an executive officer of the Company or a substantial adverse
alteration in the nature or status of your responsibilities from those in
effect immediately prior to the change in control of the Company
Page 7
other than any such alteration primarily attributable to the fact that the
Company may no longer be a public company;
(B) a reduction by the Company in your annual base salary as in
effect on the date hereof or as the same may be increased from time to
time;
(C) the Company's requiring that your principal place of business
be at an office located more than 50 miles from where your principal place
of business is located immediately prior to the change in control of the
Company, except for required travel on the Company's business to an extent
substantially consistent with your business travel obligations immediately
prior to the change in control of the Company;
(D) the failure by the Company, without your consent, to pay to you
any portion of your current compensation, or to pay to you any portion of
an installment of deferred compensation under any deferred compensation
program of the Company, within seven (7) days of the date such compensation
is due;
(E) the failure by the Company to continue in effect any
compensation plan in which you participate immediately prior to the change
in control of the Company which is material to your total compensation,
including but not limited to the Inland Annual Incentive Plan (the "Annual
Incentive Plan"), Inland Special Achievement Award Plan, Inland 1986
Employee Stock Purchase Plan, Inland 1995 Incentive Stock Plan, Inland
Steel Industries Supplemental Retirement Benefit Plan for Covered Employees
(the "Supplemental Plan"), Inland Steel Industries Special Retirement
Benefit Plan for Covered Employees (the "Special Benefit Plan"), Inland
Steel Industries Nonqualified Thrift Plan (the "Nonqualified Thrift Plan"),
Inland Steel Industries Pension Plan (the "Pension Plan") and Inland Steel
Industries Thrift Plan (the "Thrift Plan") or any substitute plans adopted
prior to the change in control, unless an equitable arrangement (embodied
in an ongoing substitute or alternative plan) has been made with respect to
such plan, or the failure by the Company to continue your participation
therein (or in such substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount of benefits provided
and the level of your participation relative to other participants, as
existed at the time of the change in control;
(F) the failure by the Company to continue to provide you with
benefits substantially similar to those enjoyed by you under any of the
Company's pension, life insurance, medical, health and accident, flexible
spending or disability plans or programs in which you were participating at
the time of the change in control of the Company, the taking of any action
by the Company which would directly or indirectly materially reduce any of
such benefits or deprive you of any material fringe benefit enjoyed by you
at the time of the change in control of the Company, or the failure by the
Company to provide you with the number of paid vacation days to which you
are entitled on the basis of years of service with the Company in
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accordance with the Company's normal vacation policy in effect at the time
of the change in control of the Company;
(G) the failure of ISI to obtain a satisfactory agreement from any
successor to assume and agree to perform this Agreement, as contemplated in
Section 5 hereof; or
(H) any purported termination of your employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of
Subsection 3(iv) below (and, if applicable, the requirements of Subsection
3(ii) above); for purposes of this Agreement, no such purported termination
shall be effective.
Your right to terminate your employment pursuant to this Section 3 shall not be
affected by your incapacity due to physical or mental illness. Your continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any circumstance constituting Good Reason hereunder.
(iv) Notice of Termination. Any purported termination of your employment by
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the Company or by you shall be communicated by written Notice of Termination to
the other party hereto in accordance with Section 6 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of your employment under the provision so indicated.
(v) Date of Termination, Etc. "Date of Termination" shall mean (A) if your
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employment is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that you shall not have returned to the full-time
performance of your duties during such thirty (30) day period), and (B) if your
employment is terminated pursuant to Subsection 3(ii) or 3(iii) above or for any
other reason (other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination pursuant to Subsection 3(ii)
above shall not be less than thirty (30) days, and in the case of a termination
pursuant to Subsection 3(iii) above shall not be less than fifteen (15) nor more
than sixty (60) days, respectively, from the date such Notice of Termination is
given); provided that if within fifteen (15) days after any Notice of
Termination is given, or, if later, prior to the Date of Termination (as
determined without regard to this proviso), the party receiving such Notice of
Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
binding arbitration award, or by a final judgment, order or decree of a court of
competent jurisdiction (which is not appealable or with respect to which the
time for appeal therefrom has expired and no appeal has been perfected) but
shall be deemed to be within the twenty four (24) month period following a
change in control of the Company; provided further that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any such dispute, the
Company will continue to pay you your full
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compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, base salary) and continue you as a participant
in all compensation, benefit and insurance plans and programs in which you were
participating when the notice giving rise to the dispute was given, until the
dispute is finally resolved in accordance with this Subsection 3(v). Amounts
paid under this Subsection 3(v) are in addition to all other amounts due under
this Agreement and shall not be offset against or reduce any other amounts due
under this Agreement.
4. Compensation Upon Termination or During Disability. Following a
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change in control of the Company, as defined by Subsection 2(i), upon
termination of your employment or during a period of Disability you shall be
entitled to the following benefits:
(i) During any period that you fail to perform your full-time duties with
the Company as a result of incapacity due to physical or mental illness, you
shall continue to receive your base salary at the rate in effect at the
commencement of any such period, together with all compensation payable to you
under the Pension Plan, Supplemental Plan, Special Benefit Plan, Annual
Incentive Plan, Thrift Plan and Nonqualified Thrift Plan (or, if and to the
extent applicable, the Ryerson Tull Pension Plan (the "RT Pension Plan"), the
Ryerson Tull Inc. Supplemental Retirement Benefit Plan for Covered Employees
(the "RT Supplemental Plan") and the Ryerson Tull Nonqualified Savings Plan (the
"RT Nonqualified Plan")) during such period, until this Agreement is terminated
pursuant to Subsection 3(i) hereof. Thereafter, in the event your employment
shall be terminated, your benefits shall be determined under the Company's
retirement, insurance and other compensation plans and programs then in effect
in accordance with the terms of such plans and programs.
(ii) If your employment shall be terminated by the Company for Cause or by
you other than for Good Reason, Disability, death or Retirement, the Company
shall pay you your full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, plus all other amounts to
which you are entitled under any compensation plan of the Company at the time
such payments are due, and the Company shall have no further obligations to you
under this Agreement.
(iii) If your employment by the Company shall be terminated (a) by the
Company other than for Cause, Retirement or Disability, or (b) by you for Good
Reason, then you shall be entitled to the compensation and benefits provided
below:
(A) The Company shall pay you your full base salary through the
Date of Termination at the rate in effect at the time Notice of Termination
is given, plus all other amounts to which you are entitled under any
compensation plan or program of the Company, at the time such payments are
due, except as otherwise provided below.
(B) In lieu of any further salary payments to you for periods
subsequent to the Date of Termination, the Company shall pay as severance
pay to you a lump sum severance payment (together with the payments
provided in paragraphs C, D and E below, the "Severance Payments") equal to
three times the sum of (x) your annual base salary in effect
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immediately prior to the occurrence of the circumstance giving rise to the
Notice of Termination given in respect thereof, and (y) the average annual
amount of the Award paid to you pursuant to the Annual Incentive Plan or
similar successor plan with respect to the five years immediately preceding
that in which the Date of Termination occurs, such average annual amount
being calculated by aggregating all such Awards paid with respect to such
five years and dividing such aggregate amount by the number of years for
which such an Award was actually paid to you.
(C) Notwithstanding any provision of the Annual Incentive Plan and the
Inland Special Achievement Award Plan, the Company shall pay to you a lump
sum amount equal to the sum of (x) any incentive compensation which has
been allocated or awarded to you for a completed fiscal year or other
measuring period preceding the Date of Termination but has not yet been
paid, and (y) a pro rata portion to the Date of Termination for the current
fiscal year or other measuring period of the amount equal to the Target
Award percentage applicable to you under the Annual Incentive Plan or
similar successor plan on the Date of Termination times your annual base
salary then in effect.
(D) In lieu of shares of common stock of ISI ("ISI Shares") issuable
upon exercise of outstanding stock options ("Options") granted to you under
ISI's stock option plans (which Options shall be cancelled upon the making
of the payment referred to below), you shall receive an amount in cash
equal to the product of (i) the excess of (x) in the case of incentive
stock options (as defined in section 422A of the Internal Revenue Code of
1986, as amended (the "Code")) ("ISOs")) granted after March 27, 1996, the
closing price of ISI's shares as reported on the New York Stock Exchange
Composite Transactions on or nearest the Date of Termination, or, in the
case of all other Options, the Change in Control Price (as defined below),
over (y) the per share exercise price of each Option then held by you
(whether or not then fully exercisable), times (ii) the number of ISI
Shares covered by each such Option. For purposes of this Agreement, the
"Change in Control Price" means: (1) with respect to a merger or
consolidation of ISI described in Subsection 2(i)(C) in which the
consideration per share of ISI's common stock to be paid for the
acquisition of shares of common stock specified in the agreement of merger
or consolidation is all in cash, the highest such consideration per share;
(2) with respect to a change in control of the Company by reason of an
acquisition of voting securities described in Subsection 2(i)(A), the
highest price per share for any share of ISI's common stock paid by any
holder of any of the securities representing 40% or more of the combined
voting power of ISI giving rise to the change in control of the Company;
and (3) with respect to a change in control of the Company by reason of a
merger or consolidation of ISI (other than a merger or consolidation
described in Clause (1) next above), stockholder approval of an agreement
or plan described in Subsection 2(i)(D), a change in the composition of the
Board described in Subsection 2(i)(B) or a change in control of the Company
pursuant to Subsection 2(i)(E) (relating to mergers, consolidations and
sales of securities or assets of a Related Company), the highest price per
share of common stock reported on the New York Stock Exchange Composite
Transactions (or, if such shares are not traded on the New York Stock
Exchange, such other principal market on which such shares
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are traded) during the sixty (60) day period ending on the date the change
in control of the Company occurs.
(E) To the extent not otherwise vested in accordance with the terms
and conditions of the Inland 1995 Incentive Stock Plan, you shall be fully
vested in any restricted shares issued thereunder and be fully vested in
any performance shares that you would have earned under the 1995 Incentive
Stock Plan for the calendar year in which the change in control of the
Company occurs had the applicable performance targets for such calendar
year been satisfied with respect to such shares.
(F) The Company shall also pay to you all legal fees and expenses
incurred by you as a result of such termination (including all such fees
and expenses, if any, incurred in contesting or disputing any such
termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement or in connection with any tax audit or
proceeding to the extent attributable to the application of Section 4999 of
the Code to any payment or benefit provided hereunder). Such payments shall
be made at the later of the times specified in paragraph (J) below, or
within five (5) days after your request for payment accompanied with such
evidence of fees and expenses incurred as the Company reasonably may
require.
(G) In the event that you become entitled to any payments provided for
hereinabove (the "Contract Payments"), if the Contract Payments or other
portion of the Total Payments (as defined below) will be subject to the tax
(the "Excise Tax") imposed by Section 4999 of the Code, the Company shall
pay to you, no later than the fifth day following the Date of Termination,
an additional amount (the "Gross-Up Payment") such that the net amount
retained by you, after deduction of any Excise Tax on the Contract Payments
and such other Total Payments and any federal and state and local income
and other payroll taxes and Excise Tax upon the payment provided for by
this paragraph (G), shall be equal to the Contract Payments and such other
Total Payments.
(H) For purposes of determining whether any of the payments will be
subject to the Excise Tax and the amount of such Excise Tax, (i) any other
payments or benefits received or to be received by you in connection with a
change in control of the Company or your termination of employment (whether
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with the Company, any person whose actions result in a change in
control or any person affiliated with the Company or such person) payable
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with the Company, any person whose actions result in a change in
control or any person affiliated with the Company or such person (together
with the Contract Payments, the "Total Payments"), shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of the Code
and all "excess parachute payments" within the meaning of Section
280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless
in the opinion of tax counsel selected by ISI's independent auditors and
reasonably acceptable to you, such other payments or benefits (in whole or
in part) do not constitute parachute payments, including by reason of
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Section 280G(b)(4)(A) of the Code or such excess parachute payments (in
whole or in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4)(B) of the Code in excess
of the base amount allocable to such reasonable compensation within the
meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to
the Excise Tax, (ii) the amount of the Total Payments which shall be
treated as subject to the Excise Tax shall be equal to the lesser of (A)
the amount of the Total Payments or (B) the amount of excess parachute
payments within the meaning of Section 280G(b)(l) of the Code (after
applying clause (i) above), and (iii) the value of any noncash benefits or
any deferred payment or benefit shall be determined by ISI's independent
auditors in accordance with the principles of Sections 280G(d)(3) and (4)
of the Code. For purposes of determining the amount of the Gross-Up
Payment, you shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of your
residence on the Date of Termination, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such state
and local taxes.
(I) In the event that the Excise Tax is subsequently determined to be
less than the amount taken into account hereunder at the time of
termination of your employment, you shall repay to the Company at the time
that the amount of such reduction in Excise Tax is finally determined the
portion of the Gross-Up Payment attributable to such reduction (plus the
portion of the Gross-Up Payment attributable to the Excise Tax and federal
and state and local income tax imposed on the Gross-Up Payment being repaid
by you if such repayment results in a reduction in Excise Tax and/or a
federal and state and local income tax deduction) plus interest on the
amount of such repayment at the rate provided in Section 1274(b)(2)(B) of
the Code. In the event that the Excise Tax is determined to exceed the
amount taken into account hereunder at the time of the termination of your
employment (including by reason of any payment the existence or amount of
which cannot be determined at the time of the Gross-Up Payment), the
Company shall make an additional gross-up payment in respect of such excess
(plus any interest payable with respect to such excess) at the time that
the amount of such excess is finally determined.
(J) The payments provided for in paragraphs (B), (C), (D) and (E)
above, shall be made not later than the fifth day following the Date of
Termination, provided, however, that if the amounts of such payments cannot
be finally determined on or before such day, the Company shall pay to you
on such day an estimate, as determined in good faith by the Company, of the
minimum amount of such payments and shall pay the remainder of such
payments (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined
but in no event later than the thirtieth day after the Date of Termination.
In the event that the amount of the estimated payments exceeds the amount
subsequently determined to have been due, such excess shall constitute a
loan by the Company to you payable on the fifth day after demand by the
Company (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
Page 13
(iv) If your employment shall be terminated (A) by the Company other than
for Cause, Retirement or Disability or (B) by you for Good Reason, then for a
thirty-six (36) month period after such termination, the Company shall arrange
to provide you with: (1) life, disability, accident and health insurance
benefits substantially similar to those which you are receiving immediately
prior to the Notice of Termination, (2) financial advisory services similar to
those provided currently to executives of the Company by Ayco Corporation, and
(3) outplacement services. Benefits otherwise receivable by you pursuant to this
Subsection 4(iv) shall be reduced to the extent comparable benefits are actually
received by you during the thirty-six (36) month period following your
termination, and any such benefits actually received by you shall be reported to
the Company. Any rights that you have to continuation of life, disability,
accident or health coverage under applicable state or federal law shall be in
addition to those provided under this Agreement.
(v) If your employment shall be terminated (A) by the Company other than
for Cause, Retirement or Disability or (B) by you for Good Reason, then in
addition to the retirement benefits to which you are entitled under the Pension
Plan, Supplemental Plan or Special Benefit Plan (and, if and to the extent
applicable, the RT Pension Plan and the RT Supplemental Plan) or any successor
plans thereto, the Company shall pay you in cash at the time and in the manner
provided in paragraph (J) of Subsection 4(iii), a lump sum equal to the excess
of (x) the actuarial equivalent of the retirement pension (taking into account
any early retirement subsidy associated therewith and determined as a straight
life annuity commencing at age sixty-five (65) or any earlier date, but in no
event earlier than the second anniversary of the Date of Termination whichever
annuity yields a greater benefit) which you would have accrued under the terms
of the Pension Plan, Supplemental Plan or Special Benefit Plan, without regard
to any amendments to any such plans made subsequent to a change in control of
the Company and on or prior to the Date of Termination, which amendment
adversely affects in any manner the computation of retirement benefits
thereunder), determined as if you were fully vested thereunder and had
accumulated (after the Date of Termination) thirty-six (36) additional months of
age and service credit thereunder at the higher of the rate of average
compensation during the twelve (12) months prior to the change in control of the
Company or the rate of average compensation used to calculate your benefits
under such plans immediately preceding the Date of Termination, over (y) the
actuarial equivalent of the retirement pension (taking into account any early
retirement subsidy associated therewith and determined as a straight life
annuity commencing at age sixty-five (65) or any earlier date, but in no event
earlier than the Date of Termination whichever annuity yields a greater benefit)
which you had then accrued pursuant to the provisions of the Pension Plan, the
Supplemental Plan and the Special Benefit Plan. For purposes of this Subsection
4(v), "actuarial equivalent" shall be determined using the same assumptions
utilized under the Pension Plan for purposes of determining alternative forms of
benefits immediately prior to the change in control of the Company.
(vi) You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section 4 be
reduced by any compensation earned by you as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by you to the Company, or otherwise, except as provided in Subsection
4(iv).
Page 14
(vii) In addition to all other amounts payable to you under this Section 4,
you shall be entitled to receive all benefits payable to you under the Pension
Plan, the Thrift Plan, Supplemental Plan, Special Benefit Plan, Nonqualified
Thrift Plan and any other plan or agreement relating to retirement benefits.
5. Successors; Binding Agreement. (i) ISI will require any successor
-----------------------------
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of ISI to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that ISI or the Company would be required to perform it if no such
succession had taken place. Failure of ISI to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle you to compensation from the Company in the
same amount and on the same terms as you would be entitled to hereunder if you
terminate your employment for Good Reason following a change in control of the
Company, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. In the event a successor of ISI assumes and agrees to perform this
Agreement, by operation of law or otherwise, the term "ISI", as used in this
Agreement, shall mean such successor and the term "Company" shall mean,
collectively, such successor and the affiliates of such successor.
(ii) This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If you should die while any amount
would still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or, if there
is no such designee, to your estate.
6. Notice. For the purpose of this Agreement, notices and all other
------
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the first page of this Agreement, provided
that all notice to the Company shall be directed to the attention of the Board
with a copy to the Secretary of ISI, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
7. Miscellaneous. No provision of this Agreement may be modified, waived
-------------
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by you and such officer as may be specifically designated by
the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Illinois. All references to sections of the Exchange
Act or the Code shall be deemed also to
Page 15
refer to any successor provisions to such sections. Any payments provided for
hereunder shall be paid net of any applicable withholding required under
federal, state or local law. The obligations of ISI and the Company under
Section 4 shall survive the expiration of the term of this Agreement.
8. Validity. The invalidity or unenforceability of any provision of this
--------
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
9. Counterparts. This Agreement may be executed in several counterparts,
------------
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. Settlement of Disputes; Arbitration. All claims by you for benefits
-----------------------------------
under this Agreement shall be directed to and determined by the Board and shall
be in writing. Any denial by the Board of a claim for benefits under this
Agreement shall be delivered to you in writing and shall set forth the specific
reasons for the denial and the specific provisions of this Agreement relied
upon. The Board shall afford a reasonable opportunity to you for a review of the
decision denying a claim and shall further allow you to appeal to the Board a
decision of the Board within sixty (60) days after notification by the Board
that your claim has been denied. Any further dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration in Chicago, Illinois, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that you
shall be entitled to seek specific performance of your right to be paid until
the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to ISI the enclosed copy of this letter which will then
constitute our agreement on this subject.
Sincerely,
INLAND STEEL INDUSTRIES, INC.
By /s/ H. William Howard
---------------------------------
H. William Howard
Vice President
Agreed to this 20 day
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of March , 1998.
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/s/ Jay M. Gratz (Signature)
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