EXHIBIT 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (hereinafter referred
to as the "Agreement") made and entered into effective as of March 4, 2005, by
and among WHX CORPORATION (hereinafter referred to as "WHX", and together with
its subsidiaries, the "Company"), a corporation organized under the laws of the
State of Delaware, with principal offices located at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, HANDY & XXXXXX (hereinafter referred to as "H&H"), a
corporation organized under the laws of New York, with principal offices located
at 000 Xxxxxxxx Xxxxx Xxxxxx, Xxx, Xxx Xxxx 00000 and XXXXXX X. XXXXX, an
individual with an office address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
WHEREAS, you have been employed as the Vice President, Finance and
then as the Chief Financial Officer of WHX pursuant to that certain employment
agreement (the "Prior Agreement") dated as of July 1, 2001 between WHX and the
Executive.
WHEREAS, the parties desire to amend and restate the Prior Agreement
pursuant to the terms described herein in consideration of, among other things,
your agreement to perform additional services for the benefit of H&H and your
extraordinary and continuing efforts in assisting the Company in developing and
analyzing its strategic alternatives.
1. You shall hold the office of the Chief Financial Officer of WHX.
Your employment with WHX shall continue through June 30, 2005, subject to
earlier termination pursuant to the provisions set forth below, and shall
automatically be extended for successive one-year terms unless either you or the
Company shall advise the other upon not more than 60 days nor less than 30 days
notice that such term shall not be renewed; provided that if the Agreement shall
not be renewed by the Company, you shall be entitled to the benefits set forth
in Section 8(b) hereof as if your employment had been terminated pursuant to
Section 7(c) hereof. The parties desire to enter into this Agreement to
supersede the Prior Agreement. The Prior Agreement is hereby terminated and all
obligations under that agreement are terminated, except as are specifically
otherwise provided in this Agreement.
2. You agree to use your best efforts to promote the interests of
the Company and devote your full business time, attention and energies to the
business and affairs of the Company. You agree to perform such services as are
customary to your position and as shall from time to time be assigned to you by
the Board of Directors of WHX, including without limitation, executive
management services from time to time on behalf of H&H. You 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 you from investing your personal
assets in businesses that do not compete with the Company in such form or manner
as will not require any services on your part in the operation of the affairs of
the companies in which such investments are made and in which your participation
is solely that of an investor; and except that you may purchase securities in
any corporation whose securities are regularly traded, provided, that such
purchase shall not result in your 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.
3. Your annual base salary shall be no less than $250,000 less
applicable federal, state and local tax deductions, payable in accordance with
the Company's customary payroll practices. Any increases in your annual salary
shall be in the sole discretion of WHX's Board of Directors. You shall also be
entitled to such annual bonus, if any, as the Compensation Committee of WHX or
the Board of Directors of WHX in its absolute discretion shall determine.
4. You shall be eligible to participate in such of the bonus and
stock option plans or similar arrangements that may be offered from time to time
by the Company, in accordance with the terms and provisions of such plans, in
the sole discretion of WHX's Board of Directors. You shall also be eligible to
continue to participate in the H&H Management Incentive Plan (the "Bonus Plan")
and the H&H Long-Term Incentive Plan (the "Incentive Plan"). Specifically, you
shall continue to be eligible and to participate in (a) the Bonus Plan in
respect of the 2001 plan year (on a pro-rated basis), and (b) the Incentive Plan
in respect of the 1999 through 2003 cycle, subject in each case to the
attainment of performance goals established by the Board of Directors of Handy &
Xxxxxx in its sole discretion.
5. (a) You shall be eligible to participate in the Company employee
benefit plans and programs, in accordance with the terms and provisions of such
plans, subject to the sole discretion of WHX's Board of Directors. Specifically,
you shall be eligible to continue to participate in the Handy & Xxxxxx
Supplemental Executive Retirement Plan and the Handy & Xxxxxx Executive Life
Insurance and Post-Retirement Life Insurance Program, in each case in accordance
with the terms and provisions of such plans.
(b) The Company shall reimburse you for annual financial, estate
and tax planning and tax preparation expenses up to a maximum of 3% of your
annual base salary in effect on January 1 of each tax year.
(c) You shall be provided with a Company car provided at the
Company's expense (which shall be your current car provided by Handy & Xxxxxx),
and such car may be replaced in the Company's sole discretion with a
substantially equivalent model.
(d) You 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 any calendar year.
(e) You shall be entitled to health insurance coverage, if and to
the extent provided to all other employees of the Company.
6. (a) The Company shall reimburse you for all reasonable business
expenses incurred by you in accordance with the Company's policies on
reimbursement for business expenses as then in effect.
-2-
(b) You and your spouse shall continue to be entitled to receive
post-retirement health insurance benefits from Handy & Xxxxxx under its
Post-Retirement Medical Plan in effect for employees of Handy & Xxxxxx prior to
1992 on such terms and conditions in place for other employees covered by such
plan.
7. (a) The Company may terminate your employment at any time,
without prior notice, for any of the following reasons: (i) your engaging in
conduct which is materially injurious to the Company, its affiliates, or any of
its respective customer or supplier relationships, monetarily or otherwise; (ii)
your engaging in any act of fraud, misappropriation or embezzlement or any act
which would constitute a felony (other than minor traffic violations); or (iii)
your material breach of this Agreement.
(b) If, as a result of your incapacity due to physical or mental
illness, you shall have been absent from the full-time performance of your
duties hereunder for at least 120 days within any twelve (12) consecutive
months, excluding vacation time actually used in accordance with the Company's
policies thereon, your employment may be terminated by the Company, upon written
notice in accordance with paragraph 8 hereof without further notice.
(c) The Company, in its sole discretion, may terminate your
employment at any time for any reason other than those stated in paragraphs 7(a)
or 7(b) upon thirty (30) days prior written notice.
8. (a) If your employment is terminated by the Company pursuant to
paragraph 7(a), you shall receive your base salary through the date of
termination and the Company shall have no further obligations to you under this
Agreement.
(b) If your employment is terminated by the Company pursuant to
paragraph 7(b) or 7(c) or as a result of your death, you or your personal
representative, guardian, or the representative of your estate shall be entitled
to the following severance and benefits:
(i) The Company shall pay you a severance payment (the
"Severance Payment") equal to one (1) year's full base salary at your highest
rate in effect during the twelve (12) months preceding the date on which the
Notice of Termination is given, plus any Bonus Plan compensation you have
accrued;
(ii) The Company shall pay you the Severance Payment no later
than the thirtieth (30th) day following the date of termination. The Company
shall pay the Severance Payment in one lump sum payment.
(iii) The Company shall continue to provide you or your
family with all of the benefits described in Section 5 hereof including, without
limitation, accruals under existing pension plans, life insurance (other than in
the event of termination of employment as a result of your death), medical and
dental insurance benefits, financial planning and a company-owned automobile,
for twelve (12) months following the date of termination. In addition, (x) the
-3-
Company shall assign to you all life insurance policies (and the their cash
surrender value) taken out on your behalf while you were employed at Handy and
Xxxxxx and (y) you shall be entitled to receive any payments under the Handy and
Xxxxxx Supplemental Employment Retirement Plan to which you otherwise would be
entitled as and when such payments are required to be made.
(iv) During the period you are receiving any payments or
benefits under paragraph 8(b), you agree to promptly notify the Company upon
your acceptance of any other employment and upon your eligibility for any
medical benefits, insurance, financial planning or use of a company-owned
vehicle by your new employer, you shall no longer be eligible to participate in
the corresponding aspects of the Company's benefit plans and arrangements.
Upon the payment to you of the benefits under Section 8(b), Sections
9 and 10 shall terminate and you shall not be entitled to any further payments
under such terminated sections.
9. You shall be entitled to terminate your employment for "Good
Reason", which shall mean the occurrence of one of the following circumstances:
(a) a reduction in your annual base salary as in effect on the
date of such change;
(b) the Company causes the relocation of the office in which you
are located prior to the change to a location more than fifty miles from New
York, New York, except for required travel on the business of the Company to an
extent substantially consistent with your present business travel obligations;
(c) breach of this Agreement by the Company; or
(d) failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement.
10. Upon the occurrence of any of the events set forth in Section 9,
you shall for Good Reason upon notice pursuant to Section 17 hereof to the
Company, if such occurrence is not cured within 30 days of receipt of such
notice, be entitled to the following benefits:
(a) The Company shall pay you a severance payment (the "Severance
Payment") equal to one (1) year's full base salary at your highest rate in
effect during the twelve (12) months preceding the date on which the Notice of
Termination is given plus any Bonus Plan compensation you have accrued;
(b) For a twelve (12) month period after termination of your
employment, the Company shall arrange to provide you with life, medical and
dental insurance benefits, financial planning and a company-owned automobile
substantially similar to those which you are receiving or entitled to receive
immediately prior to the Notice of Termination, unless you are eligible to
receive such benefits from a subsequent employer;
-4-
(c) The Company shall pay you the Severance Payment no later than
the thirtieth (30th) day following the date of termination. The Company shall
pay the Severance Payment in one lump sum payment.
(d) Upon the payment to you of the benefits under Sections 10(a),
(b) and (c), Sections 7 and 8 shall terminate and you shall not be entitled to
any further payments under such terminated sections.
11. Your continued employment shall not constitute consent to, or as
a waiver of rights with respect to, any circumstance constituting Good Reason
hereunder for a period of sixty (60) days following the occurrence of such
event, and thereafter such circumstance shall be deemed waived as an event
giving rise to a termination pursuant to Section 9.
12. Any termination of your employment by the Company, or by you
shall be communicated by written "Notice of Termination" to the other party
hereto in accordance with Section 17 hereof. For purposes of this Agreement, a
Notice of Termination shall mean a notice indicating the specific termination
provision in this Agreement relied upon and setting forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of your
employment under the provision so indicated. Further, you agree that upon
termination that you will resign effective as of the date of termination from
any and all directorships you may hold in the Company.
13. "Date of Termination" shall mean (30) days after the date
specified in the Notice of Termination.
14. (a) You agree that, at all times during and after your
employment with the Company, you shall hold and protect in strict confidence and
shall not (except as required in the furtherance of the Company's business or
with the Company's prior written consent) use or disclose for any purpose to any
person who is not then a Company employee any of the Company's confidential or
proprietary information, and you shall not cause or assist any other person to
use, publish or disclose any of such information except, however, such
information as shall have become generally available to the public other than by
your action, cause or fault.
(b) All papers, books and records of every kind and description
relating to the business and affairs of the Company or its affiliates, whether
or not prepared by you, shall be the sole and exclusive property of the Company,
and you shall surrender them to the Company at any time upon request by the
Chairman or the Board or any authorized officer of the Company.
(c) The provisions of subsections 14(a), (b) and (c) will survive
the expiration or earlier termination of the term of this Agreement and shall
extend for a period of thirty-six (36) months thereafter.
(d) You also agree that, for a period of 18 months following the
termination of your employment, you will not (i) offer, perform or attempt to
perform services for any other person, firm or corporation if any of those
-5-
services would use or disclose or cause disclosure of any confidential or
proprietary information, (ii) cause, assist or encourage any solicitation of a
customer of the Company for a sale in competition with the Company, and (iii)
cause, assist or encourage any recruitment of any employee of the Company to
become employed with another, or take any other action not consistent with good
faith employment with the Company.
(e) Notwithstanding any other provision of this Agreement, if
there is a breach or threatened breach of the provisions of this Section 14 of
this Agreement, the Company shall be entitled to an injunction restraining you
from such breach. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedies for such breach or threatened breach.
15. Subject to Section 14(e), any dispute or controversy between the
Company and you, whether arising out of or relating to this Agreement, the
breach of this Agreement, or otherwise, shall be settled by arbitration
administered by the American Arbitration Association in accordance with its
Commercial Rules then in effect and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Such
arbitration shall take place in the New York City metropolitan area. The cost of
any arbitration proceeding hereunder shall be borne equally by the Company and
you. The arbitrator shall have the authority to award any remedy or relief that
a court of competent jurisdiction could order or grant, including, without
limitation, the issuance of an injunction. However, either party may, without
inconsistency with this arbitration provision, apply to any court having
jurisdiction over such dispute or controversy and seek interim provisional,
injunctive or other equitable relief until the arbitration award is rendered or
the controversy is otherwise resolved. In the event that it shall be necessary
or desirable for you to retain legal counsel and/or incur other costs and
expenses in connection with this arbitration provision, and provided that you
substantially prevail in the enforcement of such rights, the Company shall pay
(or you shall be entitled to recover from the Company, as the case may be) your
reasonable attorneys' fees and costs and expenses in connection with any
application under this arbitration provision, including the enforcement of any
arbitration award, up to $25,000 in the aggregate. Except as necessary in court
proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may
disclose the existence, content or results of any arbitration hereunder without
the prior written consent of the Company.
16. (a) WHX and H&H shall be jointly and severally liable for all
amounts to be paid to you hereunder.
(b) The Company agrees to maintain in full force and effect all
director and officer liability insurance policies presently in effect pursuant
to their terms, and to not cancel any such policy unless a new policy is
substituted that has substantially equivalent coverage, unless the cost to
maintain such insurance, in the reasonable discretion of the Company, becomes
excessive.
(c) If you should incur any expenses in connection with the (i)
enforcement of any of your rights hereunder, including but not limited to, any
amounts due to you hereunder, or (ii) defense of any claims, whether by legal
proceedings or otherwise, for any amounts paid by the Company, directly or
-6-
indirectly, to you whether pursuant to this Agreement or otherwise, you shall be
entitled to receive pursuant to clause (i) or (ii) above, as and when requested
from time to time, whether or not there has been an adjustment of any claims
hereunder, in addition to the amounts payable hereunder, all reasonable costs of
defense or collection, including attorneys' fees and disbursements, court costs,
and any other such expenses which might be incurred.
(d) The Company hereby agrees to indemnify and hold you harmless
to the fullest extent permitted by the Certificate of Incorporation and By-laws,
as currently in effect, and in accordance with Delaware General Corporation Law,
as amended from time to time (the "DGCL"), or any other applicable law as may be
amended from time to time, against any and all amounts which you are or become
obligated to pay because of any charge, claim or claims, whether civil or
criminal, made against you because of any act or omission or neglect or breach
of duty, including any actual or alleged error or misstatement or misleading
statement or other act done or wrongfully attempted, which you commit or suffer
while acting in your capacity as an officer or director of the Company or an
affiliate thereof and because of you being such an officer or director. The
payments which the Company will be obligated to make hereunder shall include but
shall not be limited to all expenses (including attorney's fees), damages,
judgments, fines, settlements and costs, cost of investigation and costs of
defense of actual or threatened legal actions, claims or judicial administrative
or other proceedings and appeals therefrom and costs of attachment or similar
bonds and shall be payable within 30 days after you have given the Company a
written claim for such funds; provided, however, that the Company shall not be
obligated to pay fines or other obligations or fees imposed by law or otherwise
which is prohibited by applicable law from paying as indemnity. To the full
extent so permitted, the foregoing shall apply to actions by or in the right of
the Company and require the Company to pay expenses, including bail bonds, if
any, in advance of final disposition as set forth above.
(e) The Company shall not be liable under this Agreement to make
any payment in connection with any claim under Section 16(d) above:
(i) for which payment is actually made to you under a valid
and collectable Company insurance policy, which premiums are paid by the Company
or any of its affiliates, except in respect of any deductible and excess beyond
the amount of payment under such insurance;
(ii) for which you are indemnified by the Company otherwise
than pursuant to this Agreement, provided such amount has previously been paid
to you;
(iii) based upon or attributable to you gaining in fact any
personal profit or advantage to which you were legally entitled;
(iv) for an accounting of profits in fact made from your
purchase or sale of securities of the Company within the meaning of applicable
law;
-7-
(v) brought about or contributed to by your dishonesty
seeking payment hereunder; provided, however, notwithstanding the foregoing, you
shall be protected under this Agreement as to any claims upon which suit may be
brought against you by reason of any alleged dishonesty on your part, unless a
judgment or other final and nonappealable adjudication thereof adverse to you
shall establish that you committed acts of active and deliberate dishonesty with
actual dishonest purpose and intent, which acts were material and an essential
element to the cause of actions so adjudicated; and
(vi) by you acting as a plaintiff suing other directors or
officers of the Company or its affiliates.
17. Any notices required by this Agreement shall be in writing and
shall be deemed to have been given when delivered by hand, sent by facsimile (so
long as an original is mailed within 24 hours of such facsimile transmission),
mailed by United States certified mail, return receipt requested, postage
prepaid, or sent by nationally-recognized overnight mail service, as follows:
If to you:
Xx. Xxxxxx X. Xxxxx
At the address provided to the Company in accordance with
this paragraph
If to the Company:
WHX Corporation
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Secretary
and or to such other address as the parties may furnish to the other in writing
in accordance with this paragraph. Notices of change of address shall only be
effective upon receipt.
18. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to its conflict of laws
principles.
19. This Agreement sets forth the entire agreement and understanding
of the parties hereto with respect to the subject matter hereof and supersedes
all prior agreements, arrangements and understandings among the Company and you
with respect to such subject matter. This Agreement may be modified only by a
writing signed by you and the Company. If any provision of this Agreement shall
be held to be void or unenforceable, the remainder of this Agreement shall
nevertheless remain in full force and effect. This Agreement shall inure to the
benefit of and be binding upon the Company's successors and assigns.
-8-
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date and year first above written.
WHX CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
HANDY & XXXXXX
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
Agreed to this 4th day
of March, 2005
/s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
-9-
