EXHIBIT 10.28
EMPLOYMENT AGREEMENT
THIS AGREEMENT, by and between Ryerson Tull, Inc. (the "Company") and Gary
J. Niederpruem (the "Employee") effective as of March 8, 1999 (the "Effective
Date");
WITNESSETH THAT:
WHEREAS, the Company desires to appoint Employee to the position of
Executive Vice President, and Employee desires to accept such appointment; and
WHEREAS, in connection with such appointment, the Company and Employee
desire to enter into this Agreement;
NOW, THEREFORE, in consideration of the Employee's appointment as Executive
Vice President, and for other good and valuable consideration the receipt of
which is hereby acknowledged, it is agreed by the Employee and Company as
follows:
1. Duties. The Executive agrees that while he is employed by the
Company, he will devote his full business time, energies and talents to serving
as the Executive Vice President of the Company and providing services for the
Company at the direction of the Chairman of the Company. The Executive shall
have such duties and responsibilities as may be assigned to him from time to
time by the Chairman, shall perform all duties assigned to him faithfully and
efficiently, subject to the direction of the Chairman, and shall have such
authorities and powers as are inherent to the undertakings applicable to his
position and necessary to carry out the responsibilities and duties required of
him hereunder; provided, however, that the Executive shall not be required to
perform any duties while he is disabled. Notwithstanding the foregoing or any
other provisions of this Agreement, the Executive and the Company understand and
agree that the responsibilities and duties of the Executive, in his capacity as
Executive Vice President of the Company, may change from time to time due to
other changes in the nature and structure of the Company's business and that any
such changes in the Executive's duties and responsibilities that are consistent
with such changes in the Company's business shall not constitute a reduction in
the Executive's duties and responsibilities for purposes of this Agreement.
2. Compensation. Subject to the terms and conditions of this Agreement,
during the Employment Period while the Executive is employed by the Company, the
Company shall compensate him for his services as follows:
(A) The Executive shall receive, for each twelve-consecutive month period
beginning on March 8, 1999, and each anniversary thereof, an annual
salary of $285,700 (the "Salary"), which Salary shall be payable in
substantially equal bi-weekly installments. The Executive's rate of
Salary shall be reviewed annually beginning in February, 2000.
(B) The Executive shall be entitled to receive bonuses from the Company in
accordance with the bonus plans of the Company as in effect from time
to time. As Executive Vice President his target bonus award percentage
shall be 50%, subject to annual approval of the Compensation Committee
of the Board of Directors.
(C) Except as otherwise specifically provided to the contrary in this
Agreement, the Executive shall be provided with health, welfare and
other fringe benefits to the same extent and on the same terms as
those benefits are provided by the Company from time to time to the
Company's other senior management employees.
(D) The Executive shall be reimbursed by the Company, on terms and
conditions that are substantially similar to those that apply to other
similarly situated senior management employees of the Company, for
reasonable out-of-pocket expenses for entertainment, travel, meals,
lodging and similar items (including such expenses which are incurred
by the Executive at the country club at which he is a member) which
are consistent with the Company's expense reimbursement policy and
actually incurred by the Executive in the promotion of the Company's
business.
(E) The Company shall pay or shall reimburse the Executive for his monthly
country club dues and assessments; provided, however, that such
payment or reimbursement, as applicable, shall apply only to the club
at which the Executive was a member immediately prior to the date
hereof unless it is necessary for the Executive to change clubs and,
in any event shall apply to only one club at any given point in time.
(F) The Company shall pay or shall reimburse the Executive for the amount
of the monthly lease payment for the automobile that he uses for
business; provided,
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however, that the Company shall report as income to the Executive any
amounts required by law or the policies of the Company relating to the
Executive's personal use of such automobile.
3. Rights and Payments Upon Termination. The Executive's right to
benefits and payments, if any, for periods after the date on which his
employment with the Company terminates for any reason (his "Termination Date")
shall be determined in accordance with this Section 3:
(A) Termination by the Company for Reasons Other Than Cause; Termination
by the Executive for Good Reason. If the Executive's termination by
the Company occurs for any reason other than Cause or is a result of
the Executive's termination of employment for Good Reason (and is not
on account of the Executive's death, disability, or voluntary
resignation, the mutual agreement of the parties or any other reason),
then the Executive shall receive from the Company for the period
commencing on his Termination Date and ending on the earliest of (i)
the twelfth month after the Executive's Termination Date; (ii) the
date on which the Executive violates the provisions of Sections 4, 5
or 6 of this Agreement; or (iii) the date of the Executive's death,
the Salary and benefits in effect as of his Termination Date, payable
in accordance with the provisions of Paragraph 3(B).
Any income earned by the Executive from another employer during the
twelve months following the Executive's Termination Date will offset
payments made by the Company during the twelve-month period.
(B) Termination By Company for Cause. If the Executive's termination is a
result of the Company's termination of the Executive's employment on
account of Cause, then, except as agreed in writing between the
Executive and the Company, the Executive shall have no right to future
payments or benefits under this Agreement (and the Company shall have
no obligation to make any such future payments or provide any such
future benefits) for periods after the Executive's Termination Date.
(C) Termination for Death or Disability. If the Executive's termination
is caused by the Executive's death or permanent disability, then the
Executive (or in the event of his death, his estate) shall be entitled
to continuing payments of his
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Salary for the period commencing on his Termination Date and ending on
the earlier of (i) the last day of the calendar month in which his
Termination Date occurs or (ii) the date on which the Executive
violates the provisions of Sections 4, 5 or 6 of this Agreement.
(D) Termination for Voluntary Resignation, Mutual Agreement or Other
Reasons. If the Executive's termination occurs on account of his
voluntary resignation, mutual agreement of the parties, or any reason
other than those specified in Paragraphs (A), (B) or (C) above then,
except as agreed in writing between the Executive and the Company, the
Executive shall have no right to future payments or benefits under
this Agreement (and the Company shall have no obligation to make any
such future payments or provide any such future benefits) for periods
after the Executive's Termination Date. The Executive's termination
of employment for Good Reason shall not be treated as a voluntary
resignation for purposes of this Agreement.
(E) Definitions. For purposes of this Agreement:
(i) The term "Cause" shall mean (a) the continuous failure by the
Executive to substantially perform his duties under this
Agreement, as determined by the Chairman and after expiration of
a cure period of 30 days following the Executive's receipt of
notice of the Chairman's determination under this clause (a); (b)
the willful engaging by the Executive in conduct which is
demonstrably and materially injurious to the Company or its
affiliates, monetarily or otherwise, as determined by the
Chairman; (c) conduct by the Executive that involves theft, fraud
or dishonesty; or (d) the Executive's violation of the provisions
of Sections 4, 5 or 6 hereof.
(ii) The term "Good Reason" means (a) the assignment to the Executive
duties which are materially inconsistent with his duties as
Executive Vice President of the Company, including, without
limitation, a material diminution or reduction in his title,
office or responsibilities or a reduction in his rate of Salary,
or (b) the relocation of the Executive to a location that is not
within the greater Chicago metropolitan area.
Notwithstanding any other provision of this Agreement, the Executive shall
automatically cease to be an employee of the Company and its affiliates as of
his Termination Date and, to the
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extent permitted by applicable law, any and all monies that the Executive owes
to the Company shall be repaid before any post-termination payments are made
pursuant to the Executive pursuant to this Agreement.
4. Confidential Information. The Executive agrees that:
(A) Except as may be required by the lawful order of a court or agency of
competent jurisdiction, or except to the extent that the Executive has
express authorization from the Company, he shall keep secret and
confidential indefinitely all non-public information (including,
without limitation, information regarding litigation and pending
litigation) concerning the Company and its affiliates which was
acquired by or disclosed to the Executive during the course of his
employment with the Company, and not to disclose the same, either
directly or indirectly, to any other person, firm, or business entity,
or to use it in any way.
(B) Upon his Termination Date or at the Company's earlier request, he will
promptly return to the Company any and all records, documents,
physical property, information, computer disks or other materials
relating to the business of the Company and its affiliates obtained by
him during his course of employment with the Company.
(C) The Executive shall keep the Company informed of, and shall execute
such assignments as may be necessary to transfer to the Company or its
affiliates the benefits of, any inventions, discoveries, improvements,
trade secrets, developments, processes, and procedures made by the
Executive, in whole or in part, or conceived by the Executive either
alone or with others, which result from any work which the Executive
may do for or at the request of the Company, whether or not conceived
by the Executive while on holiday, on vacation, or off the premises of
the Company, including such of the foregoing items conceived during
the course of employment which are developed or perfected after the
Executive's termination of employment. The Executive shall assist the
Company or other nominated by it, to obtain patents, trademarks and
service marks and the Executive agrees to execute all documents and to
take all other actions which are necessary or appropriate to secure to
the Company and its affiliates the benefits thereof. Such patents,
trademarks and service marks shall become the property of the Company
and its affiliates. The Executive shall deliver to the Company all
sketches, drawings, models, figures, plans, outlines, descriptions or
other information with respect thereto.
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(D) To the extent that any court or agency seeks to have the Executive
disclose confidential information, he shall promptly inform the
Company, and he shall take such reasonable steps to prevent disclosure
of Confidential Information until the Company has been informed of
such requested disclosure. To the extent that the Executive obtains
information on behalf of the Company or any of its affiliates that may
be subject to attorney-client privilege as to the Company's attorneys,
the Executive shall take reasonable steps to maintain the
confidentiality of such information and to preserve such privilege.
(E) Nothing in the foregoing provisions of this Section 4 shall be
construed so as to prevent the Executive from using, in connection
with his employment for himself or an employer other than the Company
or any of its affiliates, knowledge which was acquired by him during
the course of his employment with the Company and its affiliates, and
which is generally known to persons of his experience in other
companies in the same industry.
5. Nonsolicitation. While the Executive is employed by the Company and
its affiliates and for a period of one year after the date the Executive
terminates employment with the Company and its affiliates for any reason, the
Executive covenants and agrees that he will not, whether for himself or for any
other person, business, partnership, association, firm, company or corporation,
directly or indirectly, call upon, solicit, divert or take away or attempt to
solicit, divert or take away, any of the customers or employees of the Company
or its affiliates in existence from time to time during his employment with the
Company and its affiliates.
6. Noncompetition. While the Executive is employed by the Company and
its affiliates, and for a period of one year after the date the Executive
terminates employment with the Company and its affiliates, the Executive
covenants and agrees that he will not, directly or indirectly, engage in,
assist, perform services for, plan for, establish or open, or have any financial
interest (other than (i) ownership of 1% or less of the outstanding stock of any
corporation listed on the New York or American Stock Exchange or included in the
National Association of Securities Dealers Automated Quotation System or (ii)
ownership of securities in any entity affiliated with the Company) in any
person, firm, corporation, or business entity (whether as an employee, officer,
director or consultant) that engages in an activity in any state in which the
Company or its affiliates is conducting or has reasonable expectations of
commencing business activities at the date of the Executive's termination of
employment, which
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is the same as, similar to, or competitive with the metals service center,
processing and distribution business of the Company and its affiliates.
7. Equitable Remedies. The Executive acknowledges that the Company would
be irreparably injured by a violation of Sections 4, 5 and 6 and agrees that the
Company, in addition to other remedies available to it for such breach or
threatened breach, shall be entitled to a preliminary injunction, temporary
restraining order, other equivalent relief, restraining the Executive from any
actual or threatened breach of Sections 4, 5 and 6 without any bond or other
security being required.
8. Defense of Claims. The Executive agrees that, during his employment
with the Company and after his termination, he will cooperate with the Company
and its affiliates in the defense of any claims that may be made against the
Company or its affiliates to the extent that such claims may relate to services
performed by him for the Company. To the extent travel is required to comply
with the requirements of this Section 8, the Company, shall to the extent
possible, provide the Executive with notice at least 10 days prior to the date
on which such travel would be required and the Company agrees to reimburse the
Executive for all of his reasonable actual expenses associated with such travel;
provided, however, that if the Company reasonably expects the travel to be
extensive or unduly burdensome to the Executive from a financial perspective,
the Executive may provide to the Executive pre-paid tickets for transportation
in connection with such travel.
9. Notices. Notices provided for in this Agreement shall be in writing
and shall be deemed to have been duly received when delivered in person or sent
by facsimile transmission, on the first business day after it is sent by air
express courier service or on the second business day following deposit in the
United States registered or certified mail, return receipt requested, postage
prepaid and addressed, in the case of the Company to the following address:
Ryerson Tull, Inc.
2621 W. 15th Place
Chicago, IL 60608
Attention: William Korda
or to the Executive:
Gary J. Niederpruem
25 Ridgefield Lane
Hinsdale, IL 60521
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or such other address as either party may have furnished to the other in writing
in accordance herewith, except that a notice of change of address shall be
effective only upon actual receipt.
10. Withholding. All compensation payable under this Agreement shall be
subject to customary withholding taxes and other employment taxes as required
with respect to compensation paid by a corporation to an employee and the amount
of compensation payable hereunder shall be reduced appropriately to reflect the
amount of any required withholding. The Company shall have no obligation to make
any payments to the Executive or to make the Executive whole for the amount of
any required taxes.
11. Successors. This Agreement shall be binding on, and inure to the
benefit of, the Company and its successors and assigns and any person acquiring,
whether by merger, reorganization, consolidation, by purchase of assets or
otherwise, all or substantially all of the assets of the Company.
12. Nonalienation. The interests of the Executive under this Agreement
are not subject to the claims of his creditors, other than the Company, and may
not otherwise be voluntarily or involuntarily assigned, alienated or encumbered.
13. Waiver of Breach. The waiver by either the Company or the
Executive of a breach of any provision of this Agreement shall not operate as or
be deemed a waiver of any subsequent breach by either the Company or the
Executive. Continuation of payments hereunder by the Company following a breach
by the Executive of any provision of this Agreement shall not preclude the
Company from thereafter terminating said payments based upon the same violation.
14. Severability. It is mutually agreed and understood by the parties
that should any of the agreements and covenants contained herein be determined
by any court of competent jurisdiction to be invalid by virtue of being vague or
unreasonable, including but not limited to the provisions of Sections 4, 5 and
6, then the parties hereto consent that this Agreement shall be amended
retroactive to the date of its execution to include the terms and conditions
said court deems to be reasonable and in conformity with the original intent of
the parties and the parties hereto consent that under such circumstances, said
court shall have the power and authority to determine what is reasonable and in
conformity with the original intent of the parties to the extent that said
covenants and/or agreements are enforceable.
15. Applicable Law. This Agreement shall be construed in accordance with
the laws of the State of Illinois.
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16. Amendment. This Agreement may be amended or cancelled by mutual
Agreement of the parties in writing without the consent of any other person.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a copy hereof containing multiple signature
pages, each signed by one party hereto, but together signed by both of the
parties hereto.
18. Other Agreements. This Agreement constitutes the sole and complete
Agreement between the Company and the Executive and supersedes all other
agreements, both oral and written, between the Company and the Executive with
respect to the matters contained herein including, without limitation any
severance agreements or arrangements between the parties; provided, however,
that this Agreement does not supersede the Change in Control Agreement. No
verbal or other statements, inducements, or representations have been made to or
relied upon by the Executive. The parties have read and understand this
Agreement.
RYERSON TULL, INC.
Dated: March 8, 1999 /s/ William Korda
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William Korda
Vice President Human Resources
Dated: March 8, 1999 /s/ Gary J. Niederpruem
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Gary J. Niederpruem
Executive Vice President
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