AGREEMENT
Exhibit
10.23
AGREEMENT
THIS
AGREEMENT (the “Agreement”) is made and entered into as of July 6, 2007, by and
between WHX CORPORATION, a Delaware corporation (the “Company”), with principal
offices located at 000 Xxxxxxxx Xxxxx Xxxxxx, Xxx, Xxx Xxxx 00000, and XXXXXX X.
XXXXXXXXXXXX (the “Executive”), an individual with a residence at 000 Xxxx
Xxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000.
W I T N E S S E T
H:
WHEREAS,
the Executive is the Chairman of the Board of Directors of the Company;
and
WHEREAS,
the Company wishes to retain and encourage the productive efforts of the
Executive who renders valuable service to the Company and its subsidiaries, and
contributes toward the Company’s continued growth and success.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
Section
1. Bonus. The
Executive shall be paid a Bonus in the amount specified herein. The
Bonus shall be paid upon the delivery of each Notice pursuant to Section 6
hereof, in accordance with the terms herein. The Bonus described
herein is separate and distinct from any other bonus program the Executive may
participate in or be entitled to, as determined by the Board of Directors of the
Company.
Section
2. Payment of Bonus. (a)
To trigger the payment of the First Bonus Amount, the Second Bonus Amount and
the Third Bonus Amount, the Executive shall deliver to the Company a Notice
which shall state whether the Bonus Amount to be paid is the First Bonus Amount,
the Second Bonus Amount or the Third Bonus Amount. Upon the Company’s receipt of
a Notice pursuant to Section 6 hereof, the Company shall make the Bonus Payment
to the Executive within twenty (20) business days following the Company’s
receipt of a Notice. No Notice shall be delivered until such time as
the Bonus Amount referenced therein is due and payable. A separate Notice may be
sent for each of the First Bonus Amount, the Second Bonus Amount and the Third
Bonus Amount, or a combined notice may be sent to the extent a Notice has not
previously been sent with respect to any such Bonus Amount.
(b) In
no event shall the Company make a Bonus Payment in excess of the respective
Bonus Amount or a Bonus Amount which has been terminated. The First
Bonus Amount shall be earned immediately, the Second Bonus Amount shall be
earned at any time on or following July 6, 2008 and the Third Bonus Amount shall
be earned at any time on or following July 6, 2009; and in each case payable
solely to the extent a Notice is sent following such date pursuant to Section
2(a) hereof and the terms hereof.
(c) Any
determination with respect to the amount or exercisability of the First Bonus
Amount, the Second Bonus Amount and the Third Bonus Amount shall be made by the
Compensation Committee of the Board of Directors of the Company (the
“Committee”), whose determination shall be binding absent manifest
error.
Section
3. Termination. (a)
Upon delivery of a Notice to the Company with respect to the First Bonus Amount,
the Second Bonus Amount or the Third Bonus Amount, the Executive shall have no
further right to deliver a Notice to the Company with respect to such Bonus
Amount and the Company shall have no further obligation to the Executive with
respect to such Bonus Amount other than the Bonus Payment to be paid to the
Executive pursuant to Section 2(a) hereof with respect to such Bonus
Amount.
(b) Unless
otherwise determined by the Committee, if the Executive’s employment with or
service to the Company or any if its direct or indirect wholly-owned
subsidiaries (“Subsidiary”) terminates for any reason other than death,
disability (pursuant to Section 3(d)) or Normal or Early Retirement (as such
terms are defined below), the Executive shall have no further right to receive a
Bonus Payment, whether upon the delivery of a Notice to the Company or
otherwise; provided, however that to the extent a Notice is permitted to be
delivered pursuant to Section 2(a) hereof prior to such termination, then a
Notice shall be permitted to be delivered for 30 days following the date of
termination or until the Termination Date, whichever period is shorter (solely
if such termination was without cause or for good reason by the Executive (as
determined by the Committee)), and upon delivery of a Notice as provided herein,
if a Bonus Payment is due to the Executive pursuant to Section 2 hereof, then
such Bonus Payment shall be made pursuant to the terms of Section 2 hereof. The
transfer of Executive from the employ of or service to the Company to the employ
of or service to a Subsidiary, or vice versa, or from one Subsidiary to another,
shall not be deemed to constitute a termination of employment or service for
purposes of this Agreement.
(c) Unless
otherwise determined by the Committee, if the Executive’s employment with or
service to the Company or any Subsidiary terminates by reason of death, to the
extent a Notice was permitted to be delivered immediately prior to the date of
death pursuant to Section 2(a) hereof, then such Notice may be delivered by the
legal representative of the estate or by the legatee of the Executive under the
will of the Executive (the “Representative”) within one year of the date of the
Executive’s death or until the Termination Date (as hereinafter defined),
whichever period is shorter, and any unpaid Bonus Amount due pursuant to such
Notice to shall thereafter be paid to the Representative to the extent to which
it was payable at the date of death as if such Notice was delivered on the date
of death.
(d) Unless
otherwise determined by the Committee, if the Executive’s employment with or
service to the Company or any Subsidiary terminates by reason of total and
permanent disability (as determined by the Committee), to the extent a Notice
was permitted to be delivered immediately prior to the date of disability
pursuant to Section 2(a) hereof, then such Notice may be delivered by the
Executive for a period of 60 days after the date of the Executive’s
disability or until the Termination Date, whichever period is
shorter, with respect to any Bonus Amounts to which the Notice was permitted to
be delivered prior to the date of disability, and if a Bonus Payment is due
pursuant to Section 2 upon delivery of a Notice, then such Bonus Payment shall
be made pursuant to the terms of Section 2 hereof, provided, however, that, if
the Executive dies within such 60-day period prior to delivery of a Notice,
Notice may be delivered by the Representative within one year of the date of the
Executive’s death or until the Termination Date, whichever period is shorter,
and any unpaid Bonus Amount due pursuant to such Notice shall thereafter be paid
to the Representative to the extent to which it was payable at the date of death
as if such Notice was delivered on the date of death.
2
(e) Unless
otherwise determined by the Committee, if the Executive’s employment with or
service to the Company or any Subsidiary terminates by reason of Normal or Early
Retirement (as such terms are defined below), to the extent a Notice was
permitted to be delivered immediately prior to the date of Normal or Early
Retirement pursuant to Section 2(a) hereof, then such Notice may be delivered by
the Executive for a period of 60 days after the date of the Executive’s Normal
or Early Retirement or until the Termination Date, whichever period is shorter,
and if a Bonus Payment is due upon delivery of a Notice, then such Bonus Payment
shall be made pursuant to the terms of Section 2 hereof, provided, however,
that, if the Executive dies within such 60-day period prior to delivery of a
Notice, Notice may be delivered by the Representative within one year of the
date of the Executive’s death or until the Termination Date, whichever period is
shorter, and any unpaid Bonus Amount due pursuant to such Notice shall
thereafter be paid to the Representative to the extent to which it was payable
at the time of death as if such Notice was delivered on the date of
death.
For
purposes of this paragraph (e), "Normal Retirement" shall mean retirement from
active employment with the Company or any Subsidiary on or after the normal
retirement date specified in the applicable Company or Subsidiary pension plan
or if no such pension plan, age 65, and "Early Retirement" shall mean retirement
from active employment with the Company or any Subsidiary pursuant to the early
retirement provisions of the applicable Company or Subsidiary pension plan or if
no such pension plan, from age 55 until Normal Retirement age.
(f) In
the event Executive shall have undertaken any conduct of the type that the
Committee could reasonably determine is cause for termination, irrespective of
whether Executive shall be terminated for cause, then no Bonus shall be due to
the Executive hereunder and this Agreement shall terminate and be of no further
force and effect.
(g) This
Agreement shall terminate on July 6, 2015 (the “Termination Date”), and no
Notice may be sent following July 6, 2015, and this Agreement shall terminate
and the Company shall have no further obligation to the Executive, other than if
a Notice has been sent or deemed to be sent on or prior to such
date.
Section
4. Definitions. All
capitalized terms used herein shall have the meanings set forth
below.
|
|
(a)
|
“Base
Price” shall mean $9.00
|
|
|
(b)
|
“Bonus”
shall mean all compensation paid to the Executive pursuant to the terms of
this Agreement in an amount equal to the Bonus
Amount.
|
3
|
|
(c)
|
“Bonus
Amount” shall mean the following: (i) following July 6, 2007, 50,000
multiplied by the amount by which the Stock Price exceeds the Base Price
(the “First Bonus Amount”), (ii) following July 6, 2008, 25,000 multiplied
by the amount by which the Stock Price exceeds the Base Price (the “Second
Bonus Amount”) and (iii) following July 6, 2009, 25,000 multiplied by the
amount by which the Stock Price exceeds the Base Price (the “Third Bonus
Amount”). Each of the First Bonus Amount, the Second Bonus
Amount and the Third Bonus Amount shall be additive, with the total Bonus
Amount equal to 100,000 multiplied by the amount by which the Stock Price
exceeds the Base Price, subject to the terms
hereof.
|
|
|
(d)
|
“Bonus
Payment” shall mean each payment of the Bonus that is triggered by
delivery of the Notice pursuant to this
Agreement.
|
|
|
(e)
|
“Common
Stock” shall mean the Company’s common stock, par value $.01 per
share.
|
|
|
(f)
|
“Notice”
shall mean the notice attached hereto as Exhibit
A.
|
|
|
(g)
|
“Stock
Price” shall mean the average of the closing price of the Common Stock on
the five trading days commencing on the day preceding the day the Company
receives the Notice, as applicable, on the principal securities exchange
on which shares of Common Stock are listed (if the shares of Common Stock
are so listed), or on the NASDAQ Stock Market (if the shares of Common
Stock are regularly quoted on the NASDAQ Stock Market), or, if not so
listed or regularly quoted, the mean between the closing bid and asked
prices of publicly traded shares of Common Stock in the over-the-counter
market, or, if such bid and asked prices shall not be available, as
reported by any nationally recognized quotation service selected by the
Corporation, or as determined by the Board of Directors of the
Company.
|
Section
5. Bonus
Replacement. At the Company’s sole option and discretion, it
may deliver options to purchase shares of the Company’s common stock, or similar
securities, in an amount and with such terms and conditions as to provide
Executive with the substantially equivalent economic value as Executive would
receive under the terms and provisions of this Agreement (the “Replacement
Securities”). Upon the delivery to the Executive of the Replacement
Securities, this Agreement shall terminate and be of no further force and
effect.
Section
6. No Employment
Rights. Nothing herein shall constitute a contract of
continuing employment or in any manner obligate the Company to continue the
service of the Executive or obligate the Executive to continue in the service of
the Company, and nothing herein shall be construed as fixing or regulating the
compensation paid to the Executive.
Section
7. Notices. All
notices, consents, waivers and other communication under this Agreement must be
in writing and will be deemed to have been duly given (a) when delivered by hand
(with written confirmation of receipt), (b) when sent by telecopier (with
written confirmation of receipt) and sent by nationally recognized overnight
mail within 24 hours thereafter, or (c) one day following being sent by a
nationally recognized overnight delivery service (receipt requested), in each
case to the appropriate addresses as set forth at the beginning of this
Agreement.
4
Section
8. Capital Change of the
Company. In the event of any merger, reorganization,
consolidation, recapitalization, stock dividend, or similar type of corporate
restructuring affecting the Common Stock, the Committee shall make an
appropriate and equitable adjustment in the formula of the Bonus Amount, to the
end that after such event the Executive’s approximate Bonus Payment shall be
maintained as immediately before the occurrence of such event.
Section
9. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be a duplicate original, but all of which, taken together, shall be
deemed to constitute a single instrument.
Section
10. Binding Effect;
Benefits. This Agreement shall inure to the benefit of, and be
binding upon, the parties to it and their respective successors and permitted
assigns. Nothing contained in this Agreement, express or implied, is
intended to confer upon any person other than the parties to it and their
respective successors and permitted assigns, any rights or remedies under or by
reason of this Agreement.
Section
11. Assignments. This
Agreement may not be assigned by any party without the prior written consent of
the other party; provided, however, the Company
may assign this Agreement and all of its rights and obligations under this
Agreement to any person, firm or corporation succeeding to all or a substantial
portion of the business of the Company or any of its subsidiaries, provided said
person, firm or corporation shall assume (by contract or operation of law) the
Company’s obligations under this Agreement, at which point the Company shall be
relieved of its obligations hereunder.
Section
12. Captions. The
captions contained in this Agreement are included only for convenience of
reference and do not define, limit, explain or modify this Agreement or its
interpretation, construction or meaning and are in no way to be construed as a
part of this Agreement.
Section
13. Amendments. Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
all parties hereto, or in the case of a waiver, by the party against whom the
waiver is to be effective.
Section
14. Waiver. Failure
to insist upon a strict compliance with any of the terms, covenants or
conditions of this Agreement shall not be deemed a waiver of any such term,
covenant or condition, nor shall any such failure at any one time or more times
be deemed a waiver or relinquishment at any other time or times of any right
under the terms, covenants or conditions hereof.
5
Section
15. Severability. Except
as otherwise provided to the contrary herein, each section, paragraph, part,
term and/or provision of this Agreement shall be considered severable, and if,
for any reason, any section, paragraph, part, term and/or provision herein is
determined to be invalid or contrary to, or in conflict with, any existing or
future law or regulation of a court or agency having valid jurisdiction, such
invalidity or conflict shall not impair the operation of, or otherwise effect,
the other sections, paragraphs, parts, terms and/or provisions of this Agreement
as may remain otherwise intelligible, and the latter will continue to
be given full force and effect and bind the parties hereto.
Section
16. Applicable
Law. Jurisdiction over disputes with regard to this Agreement
shall be exclusively in the courts of the State of New York, and this Agreement
shall be construed in accordance with and governed by the laws of the State of
New York.
6
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
day and year first above written.
|
WHX
CORPORATION
|
|
|
/s/
|
|
|
Name:
Title:
|
|
|
/s/
XXXXXX X. XXXXXXXXXXXX
|
|
|
XXXXXX
X.
XXXXXXXXXXXX
|
|
7
EXHIBIT
A
[Date]
WHX
Corporation.
000
Xxxxxxxx Xxxxx Xxxxxx
Xxx, Xxx
Xxxx 00000
Attn:
Corporate Secretary
Dear
Madam:
Reference
is made to that certain Agreement dated as of July 6, 2007 by and between WHX
Corporation (the “Company”) and Xxxxxx X. Xxxxxxxxxxxx (the
“Executive”). Capitalized terms used herein are used as defined in
such Agreement.
By this
Notice, I hereby elect to receive the Bonus Payment with respect to the
[First/Second/Third] Bonus Amount. Delivery of the Bonus Payment
should be sent to my address set forth below.
Please
contact me if you require any additional information.
|
Sincerely
yours,
|
|
|
|
Xxxxxx
X. Xxxxxxxxxxxx
|
8
