EX-10.12.11



 





EXECUTION VERSION




Exhibit 10.12.(k)




EMPLOYMENT AGREEMENT




December 19, 2006



This Agreement (“Agreement”), effective as of December 19, 2006 (the “Effective Date”), by and
between V. JOHN GOODWIN, currently residing at                                        , and WHEELING-PITTSBURGH STEEL CORPORATION, a
corporation organized under the laws of the State of Delaware (the “Company”) and a wholly-owned
subsidiary of WHEELING-PITTSBURGH CORPORATION, a corporation also organized under the laws of the
State of Delaware (the “Parent”).



In consideration of the covenants and conditions herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged by each party, the parties hereby agree as
follows:




1. EMPLOYMENT.



The Company shall employ the Executive commencing on the Effective Date, and the Executive hereby
accepts such employment, all upon the terms and conditions set forth herein.




2. DUTIES AND AUTHORITY.



Executive shall serve as the Chief Executive Officer of the Company, with those authorities, duties
and responsibilities customary to that position and such other authorities, duties and
responsibilities as the Board of Directors of Parent (the “Board”) may reasonably assign the
Executive from time to time. The Executive shall use his best efforts, including the highest
standards of professional competence and integrity, and shall devote substantially all of his
business time and effort, in and to his employment hereunder, and shall not engage in any other
business activity which would conflict with the rendition of his services hereunder, except that
the Executive may hold directorships or related positions in charitable, educational or
not-for-profit organizations, or directorships in business organizations if approved by the Board,
and make passive investments, which do not unreasonably interfere with the Executive’s day-to-day
acquittal of his responsibilities to the Company.




3. TERM.




     (a) GENERAL. This Agreement shall have effect as of the Effective Date, and shall
remain in effect until November 30, 2007 subject to earlier termination under Section 3(b) or
Section 5 or extension as described below. The period from the Effective Date until this Agreement
shall have expired in accordance with this Section or been terminated in accordance with Section 5
is hereafter referred to as “the term hereof” or “the term of this Agreement.” The term hereof
shall be extended automatically for an additional year as of December 1, 2007 and as of each
subsequent annual anniversary of such date (each such extension date is referred to herein as a
“Renewal Date”) unless at least one hundred twenty (120) days prior to any such Renewal Date either
party shall have given notice to the other party that the term of this Agreement shall not be so
extended.



     (b) EFFECT OF POSSIBLE MERGERS. The Parent has entered into a Merger Agreement dated
October 24, 2006 with Companhia Siderurgica Nacional (CSN). In addition, a merger with Esmark
Incorporated has been proposed. Notwithstanding the foregoing, if either



1









 




EXECUTION VERSION



of these proposed mergers
is consummated, the Agreement will terminate 30 days after completion of the merger.




     (c) SURVIVAL OF CERTAIN PROVISIONS. Notwithstanding anything else herein contained,
the provisions of Sections 4 through 7 hereof shall survive the termination of this Agreement and
of the Executive’s employment hereunder.



4. COMPENSATION.



In return for his services hereunder, the Executive shall be entitled to (i) the Salary as
specified below, (ii) bonuses, to the extent provided below, (iii) long-term incentive, and (iv)
certain fringe benefits, to the extent provided below.




     (a) SALARY. Starting with the Effective Date, the Company shall pay the Executive, in
accordance with the Company’s customary payroll practices for executives, salary at an annual rate
of $500,000, subject to annual review and upward adjustment at the determination of the
Compensation Committee of the Board (as so adjusted, the Executive’s “Salary”).



     (b) BONUS. For the period from the Effective Date until December 31, 2007, the
Executive will not be eligible to receive a bonus. In subsequent years, at the discretion of the
Compensation Committee, the Executive may participate in the Company’s existing short-term
incentive plan for executives, as the same may be amended from time to time by the Board. The Board
may also award other bonuses from time to time in its discretion.



     (c) LONG-TERM INCENTIVES. Within 30 days of the Effective Date, the Company shall make
an initial equity grant to the Executive as stated below. In all subsequent years, the Executive
shall be awarded such equity incentive awards as the Board or the Compensation Committee shall
determine from time to time in their discretion. The terms of the initial equity grant shall be as
stated below with additional terms consistent with Company practices:



     Number of restricted shares in the Parent’s stock: 23,000



     Vesting schedule for restricted shares: Vest 1/3 on each of the first three anniversaries of
the Effective Date.



     Executive may be eligible to participate in other long-term incentive plans and programs as
the Board or the Compensation Committee may deem appropriate from time to time.



     (d) FRINGE BENEFITS. The Executive will be eligible for and entitled to participate in
other benefits maintained by the Company for its senior executive officers, as such benefits may be
modified from time to time for all such employees, such as its medical, dental, 401(k), accident,
disability, and life insurance benefits, on a basis not less favorable than that applicable to
other executives of the Company. Any such participation shall be subject to (i) the terms of the
applicable plan documents, (ii) generally applicable policies of the Company and (iii) the
discretion of the Board or any administrative or other committee provided for in or contemplated by
such plan, exercised in accordance with applicable law. The Executive will also be entitled to the
following:



          (i) Subject to the Company’s standard policies, four (4) weeks of vacation per calendar year
(or any longer period as shall be provided under the Company’s general vacation policies), without
reduction in Salary, to be taken at such times and intervals as shall be




2









 




EXECUTION VERSION





determined by the
Executive subject to the reasonable business needs of the Company and to Company policies as in
effect from time.




          (ii) Appropriate office space, administrative support, e.g., secretarial assistance, and such
other facilities and services as are suitable to the Executive’s position and adequate for the
performance of the Executive’s duties.




          (iii) Payment or reimbursement of the cost, not covered by health insurance, of one
comprehensive physical examination during each year during the term of this Agreement.




          (iv) Special Travel Arrangements. The Company shall permit, arrange for and bear the cost and
expense of the judicious and reasonable use by the Executive of an airplane for business, personal
and family travel, including as an element of such cost and expense the federal, state and local
income tax consequences to the Executive of the use of such airplane for non-business purposes.



Executive acknowledges that he will have no right to cash compensation in lieu of any of the
specific foregoing fringe benefits except with respect to vacation pay, and then only to the
extent, if any, allowed by the Company’s vacation pay policies as in effect from time to time.




     (e) EXPENSES. The Executive will be entitled to reimbursement of all reasonable
expenses, in accordance with the Company’s policy as in effect from time to time and on a basis not
less favorable than that applicable to other executives of the Company, including, without
limitation, telephone, travel and entertainment expenses incurred by the Executive in connection
with the business of the Company, subject to such reasonable substantiation and documentation as
may be specified by the Company.



     (f) INDEMNIFICATION. The Company shall, and the Company shall use its best efforts to
cause the Parent and any subsidiaries or affiliates it may now or hereafter have to, indemnify the
Executive to the maximum extent permitted by law and regulation in connection with any liability,
expense or damage which the Executive incurs as a result of the Executive’s employment and
positions with the Company and its current or future subsidiaries as contemplated by this
Agreement, provided that the Executive shall not be indemnified with respect to any matter as to
which he shall have been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interest of the Company and its subsidiaries. The
Company, on behalf of itself and its current and future subsidiaries, hereby confirms that the
occupancy of all offices and positions which in the future are or were occupied or held by the
Executive in connection with his employment under this Agreement have been so occupied or held at
the request of and for the benefit of the Company and its subsidiaries for purposes of the
Executive’s entitlement to indemnification under applicable provisions of the respective articles
of organization and/or other similar documents of the Company and its subsidiaries.


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 an undertaking by 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 shall not limit any rights accruing to the Executive under any other agreement or
contract or under applicable law.




     (g) PARACHUTE PAYMENT TAXES. Notwithstanding any other provisions of this



3









 




EXECUTION VERSION



Agreement,
in the event that any payment or benefit under this Agreement or any other agreement or arrangement
of the Company received or to be received by the Executive in connection with a Change in Control
or the termination of the Executive’s employment (all such payments and benefits, the “Total
Payments”) is determined to be subject (in whole or part) to the excise tax imposed by Section 4999
of the Code (together with any interest or penalties imposed with respect to such excise tax, the
“Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including without limitation any income
taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount equal to
the Excise Tax (and, for the avoidance of doubt, the amount of the Total Payments). All
determinations required to be made under this Section 4(g), including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by the Company’s accountants or such other certified
public accounting firm reasonably acceptable to the Company as may be designated by the Executive
which shall provide detailed supporting calculations both to the Company and the Executive.




5. TERMINATION OF EMPLOYMENT AND EFFECTS THEREOF.




     (a) TERMINATION. This Agreement and the Executive’s employment under this Agreement
may be terminated only in the following circumstances. On any termination in accordance with this
Section, the Executive (or in the event of his death, his estate) shall be entitled to his then
Salary earned but unpaid through the end of the month in which termination (including death)
occurred. The Company shall have only such further obligations to the Executive (or in the event of
his death, his estate), if any, as are specified below under the applicable termination provision.



          (i) UPON DEATH. In the event of the Executive’s death during the term hereof, the
Executive’s employment hereunder shall immediately and automatically terminate.




          (ii) AS A RESULT OF DISABILITY. In the event that the Executive becomes disabled
during the term hereof within the meaning of the Company’s then applicable long-term disability
plan, the Company may terminate the Executive’s employment without further obligation upon notice
to the Executive. In the event of such disability, the Executive will continue to receive his base
salary and benefits under Section 4 hereof until the earlier of his death or the date the Executive
becomes eligible for disability income under the Company’s then applicable long-term disability
plan or workers’ compensation insurance plan.




          (iii) BY THE COMPANY FOR CAUSE. The Company may terminate the Executive’s employment
for Cause (as defined in subsection (b) below) at any time upon notice to the Executive setting
forth in reasonable detail the nature of such Cause.




          (iv) BY THE COMPANY OTHER THAN FOR CAUSE. The Company may terminate Executive’s
employment other than for Cause upon thirty (30) days notice to the Executive (or at its option
immediately with thirty (30) days continued compensation, including then Salary and benefits, in
lieu of such notice). In the event of such termination, Executive (or in the event of his death
following termination, his estate) shall be entitled only to the additional amounts described in
subparagraph (A) below and the continuation of health insurance benefits described in subparagraph
(B) below:




          (A) Salary and Pro Rata Bonus Payment. If the Executive’s employment is





4









 





EXECUTION VERSION




terminated by
the Company without Cause, the Executive shall be entitled to a payment equal to (x) one (1) times
his annual Salary at the highest annualized rate in effect during the one year immediately
preceding the date of the date of termination, payable in a single lump sum within thirty (30) days
of termination, plus (y) a pro rata bonus, in an amount determined under the terms of the
applicable Company bonus plan, (but not less than 100% of the Executive’s annual Salary for the
first year of this Agreement), payable at the same time as executive bonuses are paid generally
under the applicable Company bonus plan, but in no event later than March 15 of the year following
the year in which the termination occurs.




          (B) Health Care Continuation. If at his termination of employment by the Company
without Cause the Executive is eligible to and timely elects continued health coverage under
Sections 601-607 of ERISA (“COBRA Continuation”) then, for the period of such COBRA Continuation,
the Company shall also pay that share of the premium cost of Executive’s COBRA Continuation (and
that of his eligible dependents also electing COBRA Continuation) in the Company’s group health
plan as it pays for active employees of the Company and their dependents generally.




          (C) Effect of Change of Control. In the event the Company terminates the Executive’s
employment other than for Cause within one (1) year following a Change of Control (as defined in
subparagraph (b) below), the Executive shall be entitled to receive an amount equal to the greater
of (i) or (ii):




          (i) Two (2) times his annual Salary at the highest annualized rate in effect during the one
year immediately preceding the date of the Change of Control, payable in a single lump sum within
thirty (30) days of termination, in lieu of the amount described in subparagraph (A) above, COBRA
Continuation under subparagraph (B) above (but in this event, for a maximum of eighteen (18)
months), two (2) times his target bonus (which shall be 100% of the Executive’s annual Salary if
the Change of Control occurs during the first year of this Agreement), and all equity incentive
awards will be fully vested (including the award pursuant to Section 4(c)); or




          (ii)The amount payable under the following schedule.




	 	 	 	 	 
	Change of Control Date	 	Amount Payable	 
	Within one (1) year of Effective Date
	 	$	4,000,000	 
	After one (1) year but less than two (2) years of Effective Date
	 	$	2,000,000	 
	After two (2) years but less than three (3) years of Effective Date
	 	$	1,000,000	 
	After three (3) years of Effective Date
	 	$	0	 






          For purposes of comparing the amounts payable under (i) and (ii), the value of the vesting of
equity awards in (i) shall be the fair market value of any restricted stock that is vested and the
difference between the current fair market value of the Parent’s stock and the exercise price of
any option that is vested.




          Anything in this Agreement to the contrary notwithstanding, if the Executive’s employment with
the Company is terminated other than for Cause prior to the date on which a Change of Control
occurs, and it is reasonably demonstrated that such termination (i) was at the request of a third
party who has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise
arose in connection with or anticipation of a Change in Control then for all purposes of this
Agreement the date of the Change in Control shall mean the date immediately prior to the date of
such termination.





5









 





EXECUTION VERSION





          (v) BY THE EXECUTIVE. Executive may terminate his employment and this Agreement for
any or no reason whatsoever at any time. Except as provided in subparagraph (B), the Executive
shall give at least sixty (60) days’ advance notice of any such termination.




          (A) Good Reason. In the event the Executive gives such notice for and within sixty
(60) days of having Good Reason, on the effective date of his resignation he shall be entitled to
receive an amount equal to one (1) times his annual Salary at the highest annualized rate in effect
during the one year immediately preceding the date of the date of termination, payable in a single
lump sum within thirty (30) days of termination, COBRA Continuation under subparagraph (B) of
paragraph (iv) above and a pro rata bonus under subparagraph (A) of paragraph (iv) above.




          (B) Effect of Change of Control. In the event that at any time within one (1) year
following a Change of Control the Executive gives notice to terminate employment for Good Reason
(with such notice given within sixty (60) days of having Good Reason), he shall receive the greater
of the benefits provided under Section 5(a)(iv)(C)(i) or (ii) above. Anything in this Agreement to
the contrary notwithstanding, if the circumstances constituting Good Reason occur prior to the date
on which a Change of Control occurs, and it is reasonably demonstrated that such circumstances (i)
occurred at the request of a third party who has taken steps reasonably calculated to effect a
Change in Control or (ii) otherwise arose in connection with or anticipation of a Change in Control
then for all purposes of this Agreement the date of the Change in Control shall mean the date
immediately prior to the occurrence of such circumstances.




          (C) Resignation without Good Reason. In the event the Executive resigns other than in
the circumstances described in subparagraphs (A) and (B) above, he shall not be entitled to any
additional Salary or COBRA Continuation or pro rata bonus. The Company may at its sole option
waive the requirement of advance notice and decline to accept the Executive’s service for any
period following its receipt of notice, but in that event, Executive shall be entitled to continued
compensation in accordance with Section 4 for the entirety of the otherwise applicable notice
period (and will be deemed to be an employee for such period) as well as Salary and COBRA
Continuation and pro rata bonus in accordance with this paragraph if applicable.




          (vi) EXPIRATION. In the event that the Company or the Executive gives a Termination
Notice under Section 3(a), then upon the expiration of the term of this Agreement, if the Executive
is then employed, the Executive shall be entitled to receive an amount equal to (x) one (1) times
his annual Salary at the highest annualized rate in effect during the one year immediately
preceding the date of termination, plus (y) a pro rata bonus under subparagraph (A) of paragraph
(iv) above, payable in a single lump sum within thirty (30) days of the expiration of the term of
this Agreement, and COBRA Continuation under subparagraph (B) of paragraph (iv) above. The Salary
benefit provided by this paragraph (vi) shall be reduced (but not below zero) by the amount of any
other cash severance benefit to which the Executive may then be entitled under any general
severance plan or policy of the Company.




     (b) DEFINITIONS. For these purposes:



          (i) “Cause” means the Executive has: (A) been convicted of, or has pled guilty or nolo
contendere to any felony, or any misdemeanor involving moral turpitude under the laws of the United
States or any state or political subdivisions thereof; (B) committed a breach of duty of loyalty
which is materially detrimental to the Company; (C) materially violated any




6









 




EXECUTION VERSION





provision of Section 6
of this Agreement; (D) failed to perform or adhere to explicitly stated duties or guidelines of
employment or to follow the directives of the Board (which are not unlawful to perform or to adhere
to or follow and which are within the scope of Executive’s duties) following a written warning that
if such failure continues it will be deemed a basis for a “For Cause” dismissal; or (E) acted with
gross negligence or willful misconduct in the performance of the Executive’s duties. No act, or
failure to act, on the Executive’s part shall be deemed “willful” unless done, or omitted to be
done, by the Executive not in good faith and without reasonable belief that the Executive’s act, or
failure to act, was in the best interest of the Company. Following a Change of Control, subsection
(D) above shall be deleted from this definition of “Cause.”




          (ii) “Change of Control” means the occurrence of any of the following: (A) a merger or
consolidation of Parent or the Company with or into another person or the sale, transfer, or other
disposition of all or substantially all of the Parent’s or Company’s assets to one or more other
persons in a single transaction or series of related transactions, unless securities possessing
more than 50% of the total combined voting power of the survivor’s or acquirer’s outstanding
securities (or the securities of any parent thereof) are held by a person or persons who held
securities possessing more than 50% of the total combined voting power of Parent immediately prior
to that transaction; (B) any person or group of persons (within the meaning of Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended and in effect from time to time), other than the
Parent, the Company or an affiliate, directly or indirectly acquires beneficial ownership
(determined pursuant to Securities and Exchange Commission Rule 13d-3 promulgated under the said
Exchange Act) of securities possessing more than 50% of the total combined voting power of the
Parent’s outstanding securities pursuant to a tender or exchange offer made directly to the
Parent’s stockholders; or (C) over a period of 36 consecutive months or less from the Effective
Date, there is a change in the composition of the Board such that a majority of the members of the
Board (rounded up to the next whole number, if a fraction) ceases to be composed of individuals who
either (1) have been members of the Board continuously since the beginning of the 36-month period
referred to above or (2) have been elected or nominated for election as Board members during such
period by at least a majority of the members Board described in the preceding clause (1) who were
still in office at the time that election or nomination was approved by the Board, provided,
however, that a Change of Control shall be deemed to have occurred in any event if, by reason of
one or more actual or threatened proxy contests for the election of directors or otherwise, a
majority of the Board shall consist of individuals, other than directors referred to in clause (1)
above, whose election as members of the Board occur within such 36-month period at the request or
on behalf of the same person or group of persons (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended and in effect from time to time). Notwithstanding the
foregoing, a Change of Control shall not be deemed to have occurred if the merger of the Parent
with Companhia Siderurgica Nacional (CSN) contemplated in the Merger Agreement dated October 24,
2006 is consummated or a change-of-control transaction (including a merger) of the Parent with
Esmark Incorporated is consummated.




          (iii) “Good Reason” means (A) the assignment to the Executive of any duties inconsistent with
the Executive’s status as Chief Executive Officer of the Company or a meaningful alteration,
adverse to the Executive, in the nature or status of the Executive’s responsibilities (other than
reporting responsibilities); (B) permanent relocation of his principal place of employment to a
location more than seventy-five miles distant from his principal place of employment as of the
Effective Date; (C) a reduction by the Company in the Executive’s annual base salary as in effect
on the date hereof or as the same may be increased from time to time except for across-the-board
salary reductions similarly affecting all senior executives of the






7









 





EXECUTION VERSION




Company and all senior
executives of any person in control of the Company; (D) the failure by the Company to continue in
effect any compensation plan in which the Executive participates which is material to the
Executive’s total compensation, or the failure by the Company to continue the Executive’s
participation therein on a basis not materially less favorable, both in terms of the amount of
benefits provided and the level of the Executive’s participation relative to other participants; or
(E) the failure by the Company to continue to provide the Executive with benefits substantially
similar to those enjoyed by the Executive under any of the Company’s pension, life insurance,
medical, health and accident, or disability plans at any time subsequent to the Effective Date, or
the taking of any action by the Company which would directly or indirectly materially reduce any of
such benefits or deprive the Executive of any material fringe benefit enjoyed by the Executive at
any time subsequent to the Effective Date. Notwithstanding the foregoing, the events described in
(D) and (E) above shall not constitute “Good Reason” where they are the direct result of the
elimination or modification of benefit plans or arrangements by the Company with respect to
employees generally.




     (c) CESSATION OF AUTHORITY ON TERMINATION. Immediately upon the Executive terminating
or being terminated from his position with the Company for any reason or no reason, the Executive
will stop serving the functions of the terminated or expired position, or any other positions with
any affiliate, and shall be without any of the authority of or responsible for any position. On
request of the Board, at any time following his termination of employment for any reason or no
reason, the Executive shall resign from the Board if then a member and the board of directors of
the Company or any other subsidiary of Parent or which he is then a member.



     (d) NO OBLIGATION TO MITIGATE. Executive shall not be required to seek other
employment or income to reduce any amounts payable to the Executive by the Company under this
Section. Further, the amount of any payment or benefit provided for by this Section shall not be
reduced by any compensation earned by the Executive as the result of employment by another
employer, retirement benefits, by offset against any amount claimed to be owed by the Executive to
the Company, or otherwise.



     (e) RELEASE OF CLAIMS. Notwithstanding the foregoing, the Executive shall not be
entitled to any payments under this Section unless within twenty-one (21) days following his
termination he shall have executed and delivered to the Company a general release of claims in the
form attached hereto as Exhibit A.



     (f) SECTION 409A. Notwithstanding the foregoing provisions of this Agreement to the
contrary, if the Company determines that any amounts to be paid to the Executive under this
Agreement are subject to Section 409A of the Code, then the Company shall in good faith adjust the
form and the timing of such payments as it reasonably determines to be necessary or advisable to be
in compliance with Section 409A. If such a payment must be delayed to comply with Section 409A,
then the deferred payments shall be paid at the earliest practicable date permitted by Section
409A.



8









 




EXECUTION VERSION



6. PROVISIONS RELATING TO EXECUTIVE CONDUCT AND TERMINATION OF EMPLOYMENT.




     (a) CONFIDENTIALITY. The Executive recognizes and acknowledges that certain assets of
the Company constitute Confidential Information. The term “Confidential Information” as used in
this Agreement shall mean all information which is known only to the Executive or the Company,
other employees or others in a confidential relationship with the Company and any persons
controlling, controlled by or under common control with the Company (each, an “Affiliate”) and
their respective employees, officers and partners), and relating to the Company’ or any Affiliate’s
business (including, without limitation, information regarding clients, customers, pricing
policies, methods of operation, proprietary computer programs, sales, products, profits, costs,
markets, key personnel, formulae, product applications, technical processes, and trade secrets), as
such information may exist from time to time, which the Executive acquired or obtained by virtue of
work performed for the Company, or which the Executive may acquire or may have acquired knowledge
of during the performance of said work. The Executive agrees that at all times during his
employment and thereafter (including periods after the term of this Agreement), he will keep and
maintain all Confidential Information and all of the affairs of the Company and its Affiliates
confidential, and will not, except (1) as necessary for the performance of his responsibilities
hereunder or (2) as required by judicial process and after three days prior notice to the Company
unless required earlier by a court order or a legal requirement, disclose to any person for any
reason or purpose whatsoever, directly or indirectly, all or any part of the Confidential
Information of the Company and its Affiliates. The Executive is not bound by the restrictions in
this paragraph with respect to any information that becomes public other than as a consequence of
the breach by the Executive of his confidentiality obligations hereunder or is disclosed without an
obligation of confidentiality. The Executive can disclose all information to his personal advisors
subject to becoming liable for any violation by them of Executive’s confidentiality obligations.



     (b) RETURN OF MATERIALS. The Executive agrees that on the termination of his
employment, however such termination may occur, the Executive will promptly return to the Company
all materials and other property from time to time held by the Executive and proprietary to the
Company including without limitation any documents incorporating, reflecting or reproducing in
whole or in part any Confidential Information, credit cards, and the like.



     (c) NON-SOLICITATION AND NON-COMPETE. The Executive agrees that,



          (i) except as agreed to by the board of directors, during the term hereof, he will not,
directly or indirectly, either as a principal, agent, employee, employer, stockholder, co-partner
or in any other capacity whatsoever, engage in any outside activity, whether or not competitive
with the business of the Company, that could foreseeably give rise to a conflict of interest or
otherwise interfere with his duties and obligations to the Company;




          (ii) during the term hereof and for twelve (12) months after the term, he will not, directly
or indirectly, either as a principal, agent, employee, employer, stockholder, co-partner or in any
other capacity whatsoever, solicit, hire or attempt to hire, or assist others in soliciting, hiring
or attempting to hire, any individual employed by the Company at any time while the Executive was
also so employed, or encourage any such individual to terminate his or her relationship with the
Company ; provided, however, that nothing in this Section 6(c) shall be deemed
to prohibit Executive from: (i) making general solicitations of employment published in newspapers,
trade journals or other publications of general circulation; or (ii) employing individuals who have
terminated their employment with the Company;




          (iii) during the term hereof and for twelve (12) months after the term, he will not, directly
or indirectly, either as a principal, agent, employee, employer,
stockholder, co-




9









 





EXECUTION VERSION




partner or in any
other capacity whatsoever, engage in or undertake any planning for any activity which is
competitive with the business of the Company, as conducted or under consideration at any time
during his employment by the Company; and




          (iv) for purposes of this section, after the termination of Executive’s employment pursuant to
this Agreement, Executive’s subsequent employment or other affiliation with Esmark Incorporated
(including its successors or assigns, as well as its affiliation with one or more steel production
facilities at any time) shall not be prohibited and shall not constitute activity which is
competitive with the business.




     (d) INJUNCTIVE RELIEF. The Executive acknowledges that a breach of any of the
covenants contained in this Section 6 may result in material, irreparable injury to the Company for
which there is no adequate remedy at law, that it shall not be possible to measure damages for such
injuries precisely and that, in the event of such a breach or threat of breach, the Company shall
be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction
restraining the Executive from engaging in activities prohibited by this Section 6 or such other
relief as may be required to specifically enforce any of the covenants in this Section 6. The
Executive agrees and consents that injunctive relief may be sought in any state or federal court of
record in the Commonwealth of Pennsylvania, or in the state and county in which a violation may
occur or in any other court having jurisdiction, at the election of the Company; to the extent that
the Company seeks a temporary restraining order (but not a preliminary or permanent injunction),
the Executive agrees that a temporary restraining order may be obtained ex parte. The Executive
agrees and submits to personal jurisdiction before each and every court designated above for that
purpose.



     (e) BLUE-PENCILLING. The parties consider the covenants and restrictions contained in
this Section 6 to be reasonable. However, if and when any such covenant or restriction is found to
be void or unenforceable and would have been valid had some part of it been deleted or had its
scope of application been modified, such covenant or restriction shall be deemed to have been
applied with such modification as would be necessary and consistent with the intent of the parties
to have made it valid, enforceable and effective.



     (f) NONINTERFERENCE. In the event of any dispute under this Agreement or otherwise
relating to the Executive’s relationship with the Company, any Affiliate of the Company, or their
respective principals or management, whether or not during the term of this Agreement, the
Executive agrees not to bring any legal proceeding or take any legal action to seek to enjoin or
otherwise impede the purchase, sale, financing, refinancing, development, establishment or
operation of any business venture or entity in which any of such persons or entities has any
interest.



7. MISCELLANEOUS.




     (a) FREEDOM TO CONTRACT. The Executive represents that he is free to enter into this
Agreement and carry out his obligations hereunder without any conflict with any prior agreements,
and that he has not made and will not make any agreement in conflict with this Agreement.



     (b) ENTIRE AGREEMENT. This Agreement represents the entire and only understanding
between the parties on the subject matter hereof and supersedes any other agreements or
understandings between them on such subject matter.



10









 




EXECUTION VERSION



     (c) SPECIFIC ENFORCEMENT. The parties acknowledge and agree that the Executive’s
breach of the provisions of Sections 6 and 7 of this Agreement may cause irreparable harm to the
Company, that the remedy of damages will not be adequate for the enforcement of such provisions,
and that such provisions may be enforced by equitable relief, including injunctive relief, which
relief shall be cumulative and in addition to any other relief to which the Company may be
entitled.



     (d) BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the heirs, executors, administrators, successors and assigns of the
respective parties. Without the express written consent of the other party, neither the Company nor
the Executive may assign any duties or right or interest hereunder or right to receive any money
hereunder and any such assignment shall be void; provided, however, that without the Executive’s
consent the Company may assign its rights and obligations hereunder in their entirety to any
successor to all or substantially all of its business, whether affected by merger or otherwise. The
preceding sentence, however, shall not prevent the transfer of any right or interest to receive any
money hereunder by the Executive by way of testamentary disposition or intestate succession. The
Company shall require any successor or assign (whether direct or indirect, by purchase, merger,
reorganization, consolidation, acquisition or 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 continue to be binding upon the Company and any successor and assign shall be deemed the
“Company” for purposes of this Agreement.



     (e) SEVERABILITY. In the event any provision of this Agreement shall be determined in
any circumstances to be invalid or unenforceable, such determination shall not affect or impair any
other provision of this Agreement or the enforcement of such provision in other appropriate
circumstances.



     (f) NOTICES. All notices and other communications hereunder shall be in writing or by
written telecommunication, and shall be deemed to have been duly given if delivered personally or
if sent by overnight courier or by certified mail, return receipt requested, postage prepaid or
sent by written telecommunication or telecopy, to the relevant address set forth below, or to such
other address as the recipient of such notice or communication shall have specified to the other
party hereto in accordance with this Section 7(f):



     If to the Company, to:


Wheeling-Pittsburgh Steel Corporation

1134 Market Street

Wheeling, WV 26003

Attention: Chief Executive Officer

Telecopy: 304-234-2690



with a copy to the Company’s General Counsel at the same address.



If to the Executive, at his last residence shown on the records of the Company. Any such notice
shall be deemed to have been received (i) if delivered personally, when received, (ii) if sent by
overnight courier, when sent, (iii) if mailed, two (2) days after being mailed as described above






11









 





EXECUTION VERSION




and (iv) in the case of facsimile transmission, when confirmed by facsimile machine report.




     (g) ARBITRATION OF CLAIMS. The parties hereto agree that except as provided in Section
7(c) above any dispute hereunder, or otherwise relating to the Executive’s relationship with the
Company, whether or not arising during the term of this Agreement, shall be resolved by submission
to final and binding arbitration held in Pittsburgh, Pennsylvania or as otherwise mutually agreed
under the National Rules for the Resolution of Employment Disputes of the American Arbitration
Association then existing, and judgment on any arbitration award may be entered in any court of
competent jurisdiction. Any cause of action or matter in dispute is hereby waived unless
arbitration proceedings are initiated by the complaining party within one (1) year from the later
of the accrual of the cause of action or the date on which the cause of action should reasonably
have been discovered. The Executive and the Company agree any such arbitrator shall not be
empowered to amend or modify this Agreement or any other relevant agreement in any respect and
further agree that the arbitrator shall not have the jurisdiction to award punitive damages and
shall be without the authority to award relief other than monetary damages. Executive and the
Company understand and agree that the Company shall bear the arbitrator’s fee and any other type of
expense or cost that Executive would not be required to bear if Executive were free to bring the
dispute or claim in court as well as any other expense or cost that is unique to arbitration.
Except as provided in Section 7(i) below, Executive and the Company shall each pay their own
attorneys’ fees incurred in connection with an arbitration, and the arbitrator will not have
authority to award attorneys’ fees unless a statute or contract at issue in the dispute authorizes
the award of attorneys’ fees to the prevailing party, in which case the arbitrator shall have the
authority to make an award of attorneys’ fees as required or permitted by applicable law. If there
is a dispute as to whether Executive or the Company is the prevailing party, the arbitrator will
decide this issue. Any cause of action or matter in dispute is hereby waived unless arbitration
proceedings are initiated by the complaining party within one (1) year from the later of the
accrual of the cause of action or the date on which the cause of action should reasonably have been
discovered.



     (h) JURY & PUNITIVE DAMAGES WAIVER. EACH PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS
THAT HE OR IT MAY HAVE TO HAVE ANY DISPUTE (WHETHER OR NOT ARISING DURING THE TERM OF THIS
AGREEMENT) HEREUNDER OR OTHERWISE RELATING TO THE EXECUTIVE’S RELATIONSHIP WITH THE EMPLOYER OR ANY
AFFILIATE TRIED BEFORE OR DETERMINED BY A JURY OR TO CLAIM OR RECOVER PUNITIVE DAMAGES.



     (i) REIMBURSEMENT OF LEGAL FEES. In the event that it shall be necessary or desirable
for the Executive to retain legal counsel or incur other costs and expenses in connection with the
enforcement of any or all of his rights under 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.



     (j) AMENDMENT. This Agreement may be modified only by an instrument in writing
executed by the parties hereto.



     (k) INTERPRETATIVE MATTERS; COUNTERPARTS. The headings of sections of this Agreement
are for convenience of reference only and shall not affect its meaning or construction. The
language used in this Agreement will be deemed to be the language chosen



12









 




EXECUTION VERSION



by the parties to express
their mutual intent, and no rule of strict construction will be applied against any party. Except
as provided in Section 7(g), no delay or omission by either party hereto in exercising any right,
power or privilege hereunder shall impair such right, power or privilege, nor shall any single or
partial exercise of any such right, power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privilege. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. In making proof of this Agreement it shall not be necessary to produce
or account for more than one such counterpart.




     (l) GOVERNING LAW. This Agreement is to be governed and construed according to the
internal substantive laws of the Commonwealth of Pennsylvania.



     (m) CONFLICTS. To the extent that this Agreement conflicts with any provision, in any
handbook, policy manual, rule or regulation, the provisions of this Agreement shall take precedent.



     (n) CONSULTATION WITH COUNSEL. The Executive acknowledges that he has had a full and
complete opportunity to consult with counsel or other advisers of his own choosing concerning the
terms, enforceability and implications of this Agreement, and that the Company has made any
representations or warranties to the Executive concerning the terms, enforceability and
implications of this Agreement other than as are reflected in this Agreement.



     (o) WITHHOLDING. Any payments provided for in this Agreement shall be paid net of any
applicable tax withholding required under federal, state or local law.



     (p) REGISTRATION RIGHTS. If any Company common stock issued to the Executive under
this Agreement is not registered under the Securities Act of 1933, at the request of the Executive,
the Company shall file with the Securities and Exchange Commission a registration statement on the
applicable form, relating to the resale by the Executive of all of the common stock, and the
Company shall use its commercially reasonable best efforts to cause such registration statement to
be declared effective.



[Remainder of the page intentionally left blank]




13









 





EXECUTION VERSION




IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date and year first
above written.




	 	 	 	 	 	 	 
	 	 	WHEELING-PITTSBURGH STEEL CORPORATION  
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ David A. Luptak 	 	 
	 

	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	EXECUTIVE:  
	 
	 	 	 	 	 	 
	 	 	/s/ V. John Goodwin
	 	 	 	 	 
	 	 	V. John Goodwin






14









 




EXECUTION VERSION



EXHIBIT A




RELEASE OF CLAIMS




     In exchange for the severance pay and other benefits set forth in my 2006 Employment Agreement with
Wheeling-Pittsburgh Steel Corporation (the “Company”) effective as of December 1, 2006 (as amended
through the date hereof, the “Employment Agreement”), I forever give up, waive and release any and
all claims, charges, complaints, grievances or promises of any and every kind I may have up to the
date of this Release against the Company, its parent, Wheeling-Pittsburgh Corporation, and other
affiliates and its and their directors, officers and employees, and related persons, including,
without limitation, my rights under Title VII of the Civil Rights Act of 1964, as amended by the
Civil Rights Act of 1991, the Employee Retirement Income Security Act (“ERISA”), the Equal Pay Act,
the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”) and
other federal and state statutes prohibiting discrimination on the basis of age, sex, race, color,
handicap, religion and national origin and any common law claims, including without limitation,
claims for defamation, intentional infliction of emotional distress, intentional interference with
contract, negligent infliction of emotional distress, personal injury, breach of contract, unpaid
wages or compensation, or claims for unreimbursed expenses. This release shall not extend to any
claim to amounts due me in accordance with the terms of my Employment Agreement after termination
of my employment or to claims to indemnity I may have under the terms of my Employment Agreement,
applicable law, or the Company’s or its parent’s articles of organization or bylaws for having
served as a director, officer or employee of the Company, its parent or any affiliate.



     I acknowledge that I have been advised of my right to consult an attorney before I sign this
Release and that I have twenty-one (21) days to consider whether to sign this Release. If the
Release is not received by the Company at the end of the twenty-one (21) day period, it will be
considered expired and withdrawn and the Company’s severance obligations under my Employment
Agreement void. If I execute this Release prior to the end of the twenty-one (21) day period that
has been provided for me to consider it, I agree and acknowledge that the prior execution was a
knowing and voluntary waiver of my right to consider this Release for a full twenty-one (21) days,
and was due to my conclusion that I had ample time in which to consider and understand this
Release, and in which to review this Release with my counsel.



     Nothing in this Release shall be construed to affect the Equal Employment Opportunity Commission’s
(“Commission”) independent right and responsibility to enforce the law. I understand, however,
that, while this Release does not affect my right to file a charge or participate in an
investigation or proceeding conducted by the Commission, it does bar any claim I might have to
receive monetary damages in connection with any Commission proceeding concerning matters covered by
this Release.



     I understand I have the right to revoke this Release within seven (7) days of signing it. I
understand that to revoke this Release, I must notice the Company in writing in accordance with the
notice procedures set forth in my Employment Agreement.



	 	 	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	     Executive  
	 
	 	 	 	 	 	 





Dated: _______________________________





15