AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.4
AMENDMENT
TO
AMENDMENT TO EMPLOYMENT
AGREEMENT (the “Amendment”) made on this
20th day
of February, 2008, by and among WHX Corporation (“Employer”), a corporation
organized under the laws of the State of Delaware, and Handy & Xxxxxx
(“Former Employer”), a wholly owned subsidiary of WHX Corporation, organized
under the laws of the State of New York, each with an address at 0000
Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxx 000, Xxxxx Xxxxxx, Xxx Xxxx 00000, and Xxxxxx X.
Xxxxxx (“Employee”) residing at 000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
00000.
WHEREAS, Former Employer and
Employee entered into a certain Employment Agreement (“Agreement”), effective
February 11, 2004, and a certain Acknowledgment and Release, dated June 22, 2006
(“Release”); and
WHEREAS, Former Employer,
Employer and Employee wish to amend the terms of the Agreement by assigning the
Agreement and Former Employer’s rights thereunder to Employer, by changing
Employee’s employer of record, his title and certain bonus and/or benefit
entitlements;
NOW, THEREFORE, in
consideration of the promises and mutual covenants hereinafter contained, and in
consideration of Employee’s continued employment, the parties hereto agree as
follows:
1. Defined
Terms. All capitalized
terms contained in this Amendment shall, for the purposes hereof, have the same
meaning ascribed to them in the Agreement unless the context hereof clearly
provides otherwise or unless otherwise defined herein.
2. Change of
Address. For all purposes
hereunder and under the terms of the Agreement and the Release, the Company’s
address shall hereinafter be 0000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxx 000, Xxxxx
Xxxxxx, Xxx Xxxx 00000.
3. Change of
Definition of the “Company.” For the purpose of this
Amendment, and the Agreement, the defined term the “Company” shall hereinafter
refer to Employer and shall no longer refer to the Former Employer, and Former
Employer shall hereafter be released from any and all obligations under the
Agreement.
4. Change of
Title and Base Salary. Employee’s title, set forth in Section
1(a) of the Agreement, shall hereinafter be changed to Senior Vice President of
Corporate Development of WHX Corporation. Section 2(a) of the
Agreement shall hereinafter be changed to reflect Employee’s current base salary
of $470,000 per annum.
5. Effect of
Change in Title. The parties acknowledge
and agree that this change in title shall constitute the occurrence of the
Factors for Employee to make a Material Diminution or Relocation Termination
Election pursuant to the terms and conditions of Section 6(i) of the Agreement,
and that Employee shall be permitted to make such an election at any time during
the period beginning on the effective date of this Amendment, and ending on July
28, 2008. As a result, in the event Employee makes such an election
to terminate his position on or before July 28, 2008, he will be entitled to all
severance set forth in Section 7(b) of the Agreement and, for purposes of
Section 16(j) of the WHX Corporation 2007 Incentive Stock Plan, the Committee as
defined thereunder, will treat such termination as a good reason termination,
and advise Employee of such determination prior to such termination of
employment. In addition, Employee shall be entitled to all severance
and other payments set forth in Section 7(b) of the Agreement in the event of
his death or the termination of his employment as a result of his Disability on
or before July 28, 2008. Notwithstanding the terms of the Agreement,
if Employee makes a Material Diminution or Relocation Termination Election on or
before July 28, 2008, (i) the Company shall have no right to cure with respect
to such Election, and (ii) the termination of Employee’s employment with the
Company shall be effective on the tenth day following the date he notifies the
Company of such Election.
6. Short
Term Incentive Plan. Employee shall receive the full bonus to
which he is entitled pursuant to the 2007 Short Term Incentive Plan Bonus of the
Employer (“STIP”), attached hereto as Exhibit A, regardless of whether Employee
terminates his position prior to the date upon which such bonus is
paid.
7. Section
409A. Notwithstanding
Section 7 of the Agreement, to the extent any amounts payable to Employee under
Section 7 of the Agreement are subject to Section 409A(a)(2)(B) of the Internal
Revenue Code of 1986, as amended (the “Code”), any requirement that such amounts
be paid in a lump sum on the date ten (10) business days following the later of
the execution of the Director Resignation, and the Release Effective Date as
such term is defined in the Agreement and Release attached hereto as Exhibit B,
shall not apply, and instead such amounts shall be paid in a lump sum on the day
after the six month anniversary of the date of termination of Employee’s
employment with the Company, along with interest on such amount at the Federal
short-term rate described in Section 1274(d)(1) of the Code for the period from
the date such amount would have been paid in the absence of this sentence
through the date such payment is actually made.
8. Benefits. Employee shall
continue to receive all benefits he currently receives from Former Employer
during the term of his employment with Employer.
9. Conflicting
Provisions. In the event of any conflict or inconsistency
between
the provisions of this Amendment and those contained in the Agreement and the
Release, the provisions of this Amendment shall govern and control and be
binding upon the parties hereto.
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10. Miscellaneous
Provisions.
(a) Except
as modified by this Amendment, the Agreement and all executory covenants,
agreements, terms and conditions thereof shall remain in full force and effect
and are hereby in all respects ratified and confirmed.
(b) The
covenants, agreements, terms and conditions contained in this Amendment shall
bind and inure to the benefit of the parties hereto and, except as may otherwise
be provided in the Agreement, as hereby modified and supplemented, their
respective legal successors and assigns.
(c) This
Amendment may not be changed orally but only by a writing signed by both parties
hereto.
IN WITNESS WHEREOF, the
parties hereto have executed this Amendment on the
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Handy
& Xxxxxx
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By:
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/s/ Xxxx Xxxxxx | ||
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Name:
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Xxxx Xxxxxx | ||
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Title:
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Director | ||
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WHX
Corporation
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By:
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/s/ Xxxx Xxxxxx | ||
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Name:
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Xxxx
Xxxxxx
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Title:
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Chief
Executive Officer
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| /s/ Xxxxxx X. Xxxxxx | |
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Xxxxxx
X. Xxxxxx
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EXHIBIT A
EXHIBIT
B
