Exhibit 10.1
AGREEMENT
THIS AGREEMENT (hereinafter referred to as the "Agreement") made and
entered into effective as of this 11th day of February, 2004, by and between
HANDY & XXXXXX (hereinafter referred to as the "Company"), a corporation
organized under the laws of the State of New York, with principal offices
located at 000 Xxxxxxxx Xxxxx Xxxxxx, Xxx, Xxx Xxxx 00000 and XXXXXX X. XXXXXX
(hereinafter referred to as the "Executive"), an individual with a residence at
000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, the Executive is currently employed as President of the Company;
and
WHEREAS, the parties desire to enter into this Agreement to continue the
terms of the Executive's employment pursuant to the terms described herein, and
to provide for certain payments to the Executive in the event of a termination
of his employment as provided herein.
NOW, THEREFORE, in consideration of these premises and the mutual covenants
herein contained and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. EMPLOYMENT; TERM. (a) The Company desires to continue the employment of
the Executive and to enter into this Agreement as of the date hereof (the
"Effective Date") and the Executive desires to be so employed and the Executive
agrees to continue employment with the Company pursuant to the terms hereof. The
Executive shall hold the office of the President of the Company. The Executive
shall perform all duties of this position consistent with the powers and duties
of such offices set forth in the Company's By-Laws, as well as any other duties,
commensurate with the Executive's positions that are assigned by the Board of
Directors of the Company (the "Board").
The Executive shall devote his full working time, attention and energies
to the business of the Company and shall not during the term of this Agreement
be engaged in any other business activity, whether or not such business activity
is pursued for gain, profit or other pecuniary advantage; but this shall not be
construed as preventing the Executive from investing his personal assets in
businesses which do not compete, directly or indirectly, with the Company in any
manner, in such form or manner as will not require any services on the part of
the Executive in the operation of the affairs of the companies in which such
investments are made and in which the Executive's participation is solely that
of an investor and except that the Executive may purchase securities in any
corporation the securities of which are regularly traded, provided, that such
purchase shall not result in the Executive owning beneficially at any time one
percent (1%) or more of the equity securities of any corporation engaged in a
business directly competitive with that of the Company.
(b) The term of this Agreement shall commence on the date hereof and
shall continue in full force and effect until the second anniversary of the
Effective Date, at which time, and on each anniversary of the Effective Date
thereafter, the term of this Agreement shall be extended until the next
anniversary thereafter, unless one party hereto shall provide notice of
termination to the other party hereto no less than thirty (30) days prior to
such anniversary or such earlier date as this Agreement is terminated in
accordance with the provisions of this Agreement (such period as it may be
extended from time to time, the "Term").
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(c) All prior employment agreements between the Executive and the Company
or its subsidiaries shall be terminated on and as of the Effective Date, with no
further obligation of the Company or the Executive thereunder.
2. COMPENSATION. Subject to the terms and conditions of this Agreement, the
Company shall pay to the Executive as compensation for the duties to be
performed by the Executive under this Agreement, the sum of the following:
(a) A base salary of $350,000 per annum, to be paid no less frequently
than monthly, in equal amounts; and
(b) The Executive shall also be entitled to such annual bonus, if any, as
the Board or the Compensation Committee of the Company, as ratified by the Board
of WHX Corporation ("WHX") in its absolute discretion shall determine.
(c) The Executive has previously been granted options (the "Options") to
purchase a total of 100,000 shares of common stock of WHX pursuant to the WHX
1991 Incentive and Non-Qualified Stock Option Plan, the WHX 2001 Stock Option
Plan or the WHX 2003 Incentive Stock Plan, and acknowledges receipt of such
option grants.
3. VACATION TIME. The Executive shall be entitled to vacation with pay of
four (4) weeks in each calendar year. This vacation time shall be pro-rated for
partial employment in the final calendar year of employment.
4. BENEFITS. The Executive shall receive all normal employee benefits
available to employees of the Company including the following:
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(a) Health insurance coverage, if and to the extent provided to all other
employees of the Company, for the Executive,
(b) Vacation as provided in this Agreement;
(c) A company car provided at the Company's expense, or alternatively at
Executive's election Executive shall receive a car allowance not to exceed
$1,000 per month, in accordance with the Company's existing policies and
procedures in place for other executives and officers of the Company;
(d) Annual dues at a golf club of the Executive's selection (which is
reasonably acceptable to the Company);
(e) Non-exclusive use of a two bedroom apartment in the Rye, New York
area (subject to Section 4(f) below); and
(f) A reasonable relocation allowance (as determined by the Company) for
a permanent relocation to the geographic area encompassing the Company's
headquarters in lieu of Section 4(e) above; whether the relocation allowance
described herein or the use of the apartment described in Section 4(e) is
granted shall be determined by the Company.
5. TERMINATION OF AGREEMENT BY THE COMPANY. This Agreement may be
terminated by the Company immediately by providing notice to the Executive
pursuant to Section 12 hereof upon the occurrence of any of the following:
(a) For Cause (as defined below);
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(b) The death of the Executive;
(c) The Disability (as defined below) of the Executive; or
(d) Without Cause, upon written notice to the Executive.
"Cause" shall mean: (i) the Executive's engaging in conduct which is
materially injurious to the Company, its subsidiaries or affiliates, or any of
their respective customer or supplier relationships, monetarily or otherwise;
(ii) the Executive's engaging in any act of fraud, misappropriation or
embezzlement or any act which would constitute a felony (other than minor
traffic violations); or (iii) the Executive's material breach of this Agreement.
"Disability" shall mean: the "Executive's absence from the full-time
performance of his duties hereunder for at least ninety (90) days, whether or
not consecutive, within any twelve (12) consecutive months as a result of any
incapacity due to physical or mental illness.
6. TERMINATION OF AGREEMENT BY THE EXECUTIVE. This Agreement may be
terminated by the Executive, by written notice to the Company within (i) sixty
(60) days following a material diminution of the Executive's position, duties,
responsibilities or compensation with the Company or the relocation of the
Company's headquarters to a different location more than 50 miles from Rye, New
York and more than 50 miles from Agawam, Massachusetts (a "Material Diminution
or Relocation Termination Election") or (ii) within sixty (60) days following a
Change in Control (as defined below) (a "Change in Control Termination
Election"). In the case of a Material Diminution or Relocation Termination
Election by the Executive, the Company shall have ten (10) days following its
receipt of written notice of termination from the Executive to cure such
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material diminution or relocation. In the case of a Material Diminution or
Relocation Termination Election, if the Company does not cure such material
diminution or relocation within the ten (10) days following its receipt of such
Material Diminution or Relocation Termination Election from the Executive
pursuant to this Section 6, termination of Executive's employment shall be
effective at the end of such ten (10) day period. In the event of a Change in
Control Termination Election, the Company shall have ten (10) days following its
receipt of written notice of termination from Executive to make a written
request to Executive to continue his employment with the Company at his
then-present annual base salary, applied on a pro-rata basis, for a period of
sixty (60) days from the date of such written request. The Company shall be
required to make the Severance Payment (as defined in Section 7(a) of this
Agreement) to the Executive pursuant to the terms of Section 7(b) without regard
to whether or not it sends such request to Executive. Upon timely receipt of
such request from the Company, Executive shall continue his employment for such
sixty (60) day period, at the end of which Executive's employment shall
terminate. If the Company does not send such request, the termination of
Executive's employment shall be effective at the end of such ten (10) day
period.
"Change in Control" shall mean: (i) the direct or indirect sale, lease,
exchange or other transfer of all or substantially all of the assets of the
Company to any person or entity or group of persons or entities acting in
concert as a partnership or other group (a "Group of Persons"), (ii) the merger,
consolidation or other business combination of the Company with or into another
corporation with the effect that the shareholders of the Company, as the case
may be, immediately following the merger, consolidation or other business
combination, hold 50% or less of the combined voting power of the then
outstanding securities of the surviving corporation of such merger,
consolidation or other business combination ordinarily (and apart from rights
accruing under special circumstances) having the right to vote in the election
of directors, (iii) the replacement of at least 50% of the Board over any period
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of two years or less, as compared to the directors who constituted the Board at
the beginning of such period, and such replacement(s) shall not have been
approved by a majority of the Board as constituted at the beginning of such
period, or (iv) a person or Group of Persons shall, as a result of a tender or
exchange offer, open market purchases, privately negotiated purchases or
otherwise, have become the beneficial owner (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of securities of the
Company representing 50% or more of the combined voting power of the then
outstanding securities of such corporation ordinarily (and apart from rights
accruing under special circumstances) having the right to vote in the election
of directors.
7. SEVERANCE AND OTHER PAYMENTS. (a) In the event that the Executive's
employment is terminated at any time pursuant to Section 5(d) of this Agreement,
which termination shall include the giving of notice not to extend the Term
pursuant to Section 1(b), the Company agrees to pay the Executive a lump-sum
cash payment (the "Severance Payment") equal to his then current annual base
salary for two years (such period, the "Severance Period"), and the Company
shall have no further obligations to the Executive. Prior to and as a
precondition to the payment of such amount, the Executive shall deliver to the
Company a general release of the Company, its subsidiaries and affiliates, and
each of their officers, directors, employees, agents, successors and assigns, in
the form attached hereto as Exhibit A and provide the Director Resignation (as
defined below), if applicable. Payment shall be made on the date ten (10)
business days following the delivery by Executive of the general release
described in the previous sentence and the Director Resignation, and if the
general release and the Director Resignation is not so delivered within sixty
(60) days of termination of the Executive's employment, no payment shall be due.
In all other instances, including termination of the Executive's employment for
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Cause, termination pursuant to Sections 5(b) or 5(c), or if the Executive
voluntarily leaves the employment of the Company, the Executive shall not be
eligible or entitled to, and the Company shall not be obligated to make, any
payment following the Executive's termination, except as otherwise provided in
Section 7(b), and the Company shall have no further obligations to the
Executive. Executive agrees that upon the termination of his employment with the
Company he shall immediately resign his positions, if any, as a director of the
Company and each of its subsidiaries (the "Director Resignation").
(b) In the event that the Executive makes an election to terminate his
employment pursuant to the terms of Section 6, and the Company does not cure
such termination pursuant to the terms of the second or third sentence of
Section 6, if applicable, the Executive shall be entitled to receive from the
Company a lump-sum cash payment equal to the Severance Payment, and the Company
shall have no further obligation to the Executive. Prior to and as a
precondition to the payment of the Severance Payment the Executive shall deliver
to the Company a general release of the Company, its subsidiaries and
affiliates, and each of their officers, directors, employees, agents, successors
and assigns, in the form as attached hereto as Exhibit A, and provide the
Director Resignation, if applicable. The Severance Payment shall be made on the
date ten (10) business days following the delivery by Executive of the general
release described in the previous sentence and the Director Resignation, and if
the general release and the Director Resignation is not so delivered within
sixty (60) days of a written notice of the Executive's termination election, no
payment shall be due. Executive agrees that upon the termination of his
employment with the Company he shall immediately deliver the Director
Resignation.
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8. EXECUTIVE EXPENSES. Any ordinary and necessary expenses incurred by the
Executive on behalf of the Company which are directly connected with or
pertaining to the furtherance of the business of the Company shall be reimbursed
to the Executive upon receipt by the Company, within thirty (30) days from the
date of expense, of a written statement with receipts attached stating: (i) the
amount of such expense; (ii) the time and place that the expense was incurred;
(iii) the business purpose of the expense; and (iv) the business relationship to
the Company of persons entertained, if any.
9. DISCLOSURE OF INFORMATION.
(a) The Executive will not at any time, whether during or after the
termination of his employment, divulge, use, furnish, disclose or make available
to any person, association or company, any non-public information concerning the
Company's business, including without limitation, its marketing plans and
strategies, pricing policies, planned strategies related to sources of supply,
methods of delivery, customer names, purchasing needs and/or priorities of
customers, and the finances or financial information of the Company, so far as
such information has come to his knowledge as a result of or subsequent to his
employment by the Company, except to the extent the disclosure may be required
by law or such information is in the public domain through no fault of the
Executive. The Executive acknowledges that such information, including without
limitation, information regarding the Company's customers, their purchasing
needs and priorities, the Company's sources of supply, its business plans and
financial condition, is non-public, proprietary, and confidential and that the
disclosure of such information to the Company's competitors will cause the
Company substantial harm. Executive shall keep secret all matters of such nature
entrusted to him and shall not use or attempt to use any such information in any
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manner which may injure or cause loss to the Company. In addition, copies of all
data files on Executive's own media must be deleted and a letter stating such
must be sent to the Company.
(b) Executive agrees that upon termination of his services hereunder he
will immediately surrender and turn over to the Company all books, forms,
records, reports, lists and all other papers and writings, including items
storing computer memory (except computer hard drives from which items relating
to the Company and its business have been deleted), relating to the Company and
its business and all other property belonging to the Company, it being
understood and agreed that the same are solely the property of the Company.
(c) The provisions of this Section will survive the expiration or earlier
termination of the term of this Agreement.
10. COVENANTS NOT TO COMPETE OR INTERFERE.
(a) From and after the termination of the Executive's employment, for the
Severance Period, the Executive will not (i) directly or indirectly, own an
interest in, operate, join, control, or participate in, or be connected as an
officer, employee, agent, independent contractor, partner, shareholder, or
principal of any corporation, partnership, proprietorship, firm, association,
person, or other entity engaged in a business which sells, manufactures or
produces the products sold, manufactured or produced by the Company or its
subsidiaries (the "Products") at the time of the termination of the Executive's
employment under this Agreement or otherwise competes, directly or indirectly,
with the Company (a "Competing Business") or (ii) knowingly solicit or accept
business for a Competing Business (x) from any customer of the Company, or its
subsidiaries, (y) from any former customer of the Company who purchased any
Products during the twelve months preceding the termination of the Executive's
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employment under this Agreement or (z) from any prospect of the Company with
whom the Executive met to solicit or with whom the Executive discussed the sale
of any Products during the twelve months preceding the termination of the
Executive's employment under this Agreement. Executive acknowledges that the
Company's sales of the Products are national in scope. Notwithstanding the
foregoing, the Executive may own up to 1% of the outstanding common stock of any
class of common equity of a publicly traded corporation provided the Executive's
role with the corporation is passive in nature.
(b) During the Term, and during the period ending on the later of the end
of the Severance Period or twelve (12) months from and after the end of the
Term, the Executive will not directly or indirectly, as a sole proprietor,
member of a partnership or stockholder, investor, officer or director of a
corporation, or as an employee, agent, associate or consultant of any person,
firm or corporation, induce or solicit, or attempt to induce or solicit, any
employee of the Company or its subsidiaries or affiliates to terminate his
employment with the Company or in any way interfere with the relationship
between the Company, or its subsidiaries or affiliates, and the employee, and
will not solicit, hire, retain or enter into any business arrangements, with or
enter into any discussion to do the same, with any person working for, or
independent contractor of, the Company, or its subsidiaries or affiliates.
(c) During the Term of this Agreement, and during the greater of the
Severance Period or the 12-month period following the Term, the Executive will
not directly or indirectly hire, engage, send any work to, place orders with, or
in any manner be associated with any supplier, contractor, subcontractor or
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other business relation of the Company if such action would have a reasonably
foreseeable adverse effect on the business, assets or financial condition of the
Company or materially interfere with the relationship between any such person or
entity and the Company. (d) It is the desire and intent of the parties that the
provisions of this Section 10 shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular portion of this
Section 10 shall be adjudicated to be invalid or unenforceable, this Section 10
shall be deemed amended to delete therefrom the portion this adjudicated to be
invalid or unenforceable, such deletion to apply only with respect to the
operation of this Section 10 in the particular jurisdiction in which such
adjudication is made. The provisions of this Section 10 will survive the
expiration or earlier termination of the term of this Agreement.
11. INJUNCTIVE RELIEF. If there is a breach or threatened breach of the
provisions of Sections 9 or 10 of this Agreement, the Company shall be entitled
to an injunction restraining the Executive from such breach. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedies
for such breach or threatened breach.
12. NOTICES. All notices, requests, demands and other communications
hereunder must be in writing and shall be deemed to have been duly given upon
delivery if delivered by hand, sent by telecopier, facsimile or overnight
courier, and three (3) days after such communication is mailed within the
continental United States by first class certified mail, return receipt
requested, postage prepaid, to the other party, in each case addressed as
provided in the introduction to this Agreement. Addresses may be changed by
written notice sent to the other party at the last recorded address of that
party.
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13. INSURANCE. The Company may, at its election and for its benefit, insure
the Executive against accidental loss or death, and the Executive shall submit
to such physical examinations and supply such information as may be reasonably
required in connection therewith.
14. AUTHORITY. The Executive represents and warrants that he is not subject
to any agreement, instrument, order, judgment or decree of any kind or any other
restrictive agreement of any character, which would prevent him from legally
entering into this Agreement, or which would be breached by the Executive upon
execution of this Agreement. The Executive agrees to indemnify and hold the
Company harmless for any liability to the Company arising from a breach of this
representation and warranty.
15. ASSIGNMENT. The services to be rendered and the obligations to be
performed by the Executive under this Agreement are special and unique, and all
such services and obligations and all of the Executive's rights under this
Agreement are personal to the Executive and shall not be assignable and any
purported assignment thereof shall not be valid or binding upon the Company.
However, in the event of the Executive's death during the term of this
Agreement, the Executive's estate shall be entitled to receive salary and any
other payment due and accrued through the date of the Executive's death and all
payments due to the Executive pursuant to the provisions of Section 7. The
Company may assign this Agreement and all of its rights under this Agreement to
any person, firm or corporation succeeding to the business of the Company,
provided said company shall assume (by contract or operation of law) the
Company's obligations under this Agreement, at which point the Company shall be
relieved of their obligations hereunder.
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16. WAIVER OF BREACH. The waiver of either the Company or the Executive of
a breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach by either the Company or the Executive.
17. AMENDMENTS. No amendments or variations of the terms and conditions of
this Agreement shall be valid unless the same is in writing and signed by all of
the parties thereto.
18. COMPLETE AGREEMENT. This Agreement constitutes the entire understanding
between the parties hereto relating to the matters contained, and supersedes any
prior contracts or understandings, oral or written, relating to the employment
of the Executive.
19. HEADINGS. The section headings contained herein are for convenience
only and shall not in any way affect the interpretations or enforceability of
any provision of this Agreement.
20. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement, whether in whole or in part, shall not in any way affect the
validity and/or enforceability of any other provision herein contained. Any
invalid or unenforceable provision shall be deemed severable to the extent of
any such invalidity or unenforceability.
21. COUNSEL. It is understood and agreed that Executive has been
represented by counsel of his choosing in connection with this Agreement.
22. GOVERNING LAW. This Agreement and all matters concerning its
interpretation, performance, or the enforcement hereof, shall be governed in
accordance with the laws of the State of New York without regard to principles
of conflict of law.
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23. JURISDICTION. Each of the parties hereto hereby irrevocably and
unconditionally submits to the exclusive jurisdiction of any court of competent
jurisdiction of the State of New York or any court of competent jurisdiction of
the United States of America sitting in the County of New York, State of New
York, and any appellate court thereof, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding shall be heard and determined in any such New York State
or, to the extent permitted by law, in such federal court. Each of the parties
hereto irrevocably and unconditionally waives, to the fullest extent either of
them may legally and effectively do so, any objection that either of them may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York state or federal
court in New York County. Each of the parties hereto hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court. Each of the
parties hereto irrevocably waives the right to trial by jury and each of the
parties irrevocably consents to service of process by first class certified
mail, return receipt requested, postage prepaid, to the address at which such
party is to receive notice in accordance with Section 12.
24. COUNTERPARTS. This Agreement may be executed in more than one
counterpart and each counterpart shall be considered an original.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxxx
HANDY & XXXXXX
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
