INSTRUMENT OF AMENDMENT
EXHIBIT
10.2
INSTRUMENT
OF AMENDMENT
INSTRUMENT OF AMENDMENT, dated as of
April 29, 2008, by and between SCHNITZER STEEL INDUSTRIES, INC. (the “Company”)
and XXXXXX X. XXXXX (XXXXXXXX) (the “Executive”), to the Change in Control
Severance Agreement, dated as of March 24, 2006, between the Company and the
Executive (the “Change in Control Agreement”) (capitalized terms used but not
defined herein shall have the respective meanings given such terms in the Change
in Control Agreement).
W I T N E S S E T
H:
WHEREAS, the Company and the
Executive have entered into the Change in Control Agreement;
WHEREAS, Section 11 of the
Change in Control Agreement provides that the Change in Control Agreement may
not be modified except in writing by the Executive and the Company;
and
WHEREAS, the Company and the
Executive desire to modify the Change in Control Agreement as provided
herein.
NOW, THEREFORE, the parties
hereto agree as follows:
1.
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Section
2 of the Change in Control Agreement is hereby amended by deleting the
section in its entirety and by substituting the following in lieu
thereof:
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“Term of
Agreement. This Agreement shall commence on the date hereof
and shall continue in effect through August 31, 2009, or earlier termination of
your employment; provided, however, that (1) commencing on September 1, 2009 and
each September 1 thereafter, the term of this Agreement shall automatically be
extended for one additional year unless at least ninety (90) days prior to such
September 1 date, the Company or you shall have given notice that this Agreement
shall not be extended (provided that no such notice may be given by the Company
during the pendency of a Potential Change in Control), and (2) provided further
that this Agreement shall continue in effect for a period of twenty-four (24)
months beyond the term provided herein if a Potential Change in Control or a
Change in Control shall have occurred during such term.
2.
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Section
4 of the Change in Control Agreement is hereby amended by deleting
subsection 4(iii)(A) and by substituting the following in lieu
thereof:
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“a change
in your status, title, positions or responsibilities as Executive Vice President
and Chief Operating Officer or the assignment to you of any duties or
responsibilities which are inconsistent with such status, title or positions, or
any
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removal
of you from or any failure to reappoint or reelect you to such positions, except
in connection with the termination of your employment for Cause or Disability or
as a result of your death or by you other than for Good Reason.”
3.
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Section
4 of the Change in Control Agreement is hereby amended by deleting
subsection 4(iii)(e) and by substituting the following in lieu
thereof:
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“the
Company’s requiring you to relocate your residence, or change your base office
location from the location currently in New York City (or other offices in
reasonable proximity within New York City) immediately prior to the earlier of
Shareholder Approval, if applicable, or the Change in Control except for
required travel on the Company’s business to an extent substantially consistent
with the business travel obligations which you undertook on behalf of the
Company prior to the earlier of Shareholder Approval, if applicable, or the
Change in Control.”
4.
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Section
5 of the Change in Control Agreement is hereby amended by deleting
subsection 5(iii)(A) and by substituting the following in lieu
thereof:
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“the
Company shall pay your full base salary at the rate in effect just prior to
the time
a Notice of Termination is given plus your current year annual bonus through the
Date of Termination plus any benefits or awards which pursuant to the terms of
any Plans have been earned or become payable, but which have not yet been paid
to you.”
5.
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Section
5 of the Change in Control Agreement is hereby amended by deleting
subsection 5(iii)(B) and by substituting the following in lieu
thereof:
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“as
severance pay and in lieu of any further salary for periods subsequent to the
Date of Termination, the Company shall pay to you in a single payment an amount
in cash equal to the sum of (1) three (3) times the greater of (i) your annual
rate of base salary in effect on the Date of Termination or (ii) your annual
rate of base salary in effect immediately prior to the earlier of Shareholder
Approval, if applicable, or the Change in Control plus (2) three (3) times the
sum of the greater of (i) the average of your last three annual bonuses
(annualized in the case of any bonus paid with respect to a partial year);
provided, however, that, the amount taken into account with respect to each of
the last three annual bonuses shall not exceed three times the target bonus
established by the Board with respect to each such year or (ii) the target bonus
as most recently established by the Board.”
6.
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(a)
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In
the event of any conflict between the terms of this Instrument of
Amendment and the terms of the Change in Control Agreement, the terms of
this Instrument of Amendment shall take precedence. Except
as
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expressly
modified herein, the Change in Control Agreement shall remain in full
force and effect throughout the entire Employment
Term.
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(b)
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The
validity, interpretation, construction and performance of this Instrument
of Amendment shall be governed by the laws of the State of
Oregon.
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(c)
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This
Instrument of Amendment may be executed in two or more counterparts, all
of which taken together shall constitute one
instrument.
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IN WITNESS WHEREOF, the
parties hereto, intending to be legally bound, have hereunto executed this
Instrument of Amendment, effective as of the day and year first written
above.
Acknowledged
and Agreed to by:
XXXXXX X.
XXXXX (XXXXXXXX)
/s/ Xxxxxx X.
Xxxxxxxx
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Date:
April 30,
2008
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Acknowledged
and Agreed to by:
SCHNITZER
STEEL INDUSTRIES, INC.
By: /s/ Xxxx X.
Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
& Chief Executive Officer
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Date:
April 30,
2008
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