RESTATED CONFIRMATION AGREEMENT
Agreement dated as of February 26, 1998 between Handy &
Xxxxxx, a New York corporation (the "Company"), and Xxxxx X. Xxxxxxxxx
("Executive").
WHEREAS, the Company and Executive have entered into:
(1) a letter agreement dated as of May 23, 1989 (the "Letter
Agreement"), and the changes thereto approved by resolution of the Company's
Board of Directors on May 12, 1992 (the "1992 Resolution");
(2) an Executive Agreement dated as of July l, 1989, as amended by an
Amendment to Executive Agreement dated as of July 1, 1989 (the "Executive
Agreement");
(3) an Agreement dated as of September 22, 1994 (the "1994 Agreement");
and
(4) an Amended and Restated Agreement dated as of November 3, 1995 (the
"1995 Agreement") (the Letter Agreement, the 1992 Resolution, the Executive
Agreement, the 1994 Agreement and the 1995 Agreement being referred to collec-
tively as the "Agreements");
WHEREAS, the Company and Executive have discovered that
certain references in the Agreements entered into subsequent to the Letter
Agreement are confusing and that certain provisions in such Agreements are
inconsistent with their mutual intent in entering into such Agreements and their
mutual understanding regarding the combined effect of the Agreements; and
WHEREAS, such mutual intent and understanding were, in
substance, that the Letter Agreement has no further effect, that the 1992
Resolution remains in effect for purposes of the 1995 Agreement, that the
Executive Agreement remains in effect notwithstanding the 1994 Agreement, that
the 1995 Agreement replaced the 1994 Agreement and that provisions of the 1995
Agreement relating to the Severance Payment provided for therein do not apply in
the event of a termination of Executive's employment with the Company to which
the Executive Agreement applies;
NOW THEREFORE, to accurately reflect their mutual intent and
mutual understanding, the Company and Executive hereby agree that notwithstand-
ing any different characterization of the provisions or effectiveness of any of
the
Agreements contained in any other Agreement, and notwithstanding any provision
of any of the Agreements to the contrary:
(1) The Letter Agreement was superseded by the 1994 Agreement (and the
1995 Agreement), other than for purposes of references to the Letter Agreement
in the WHEREAS clauses of the 1994 Agreement (and the 1995 Agreement);
(2) the 1992 Resolution remains in full force and effect solely for
purposes of references to it in the 1995 Agreement;
(3) the Executive Agreement was not replaced by the 1994 Agreement, but
instead remains in full force and effect;
(4) the 1994 Agreement was replaced ab initio by the 1995 Agreement;
and
(5) the 1995 Agreement remains in full force and effect, except that it
is expressly understood that:
(A) the term "Amended Agreement" in the second WHEREAS clause
of the 1995 Agreement refers to the Letter Agreement, as changed by the
1992 Resolution, rather than to the 1994 Agreement; and
(B) the provisions of the first three sentences of Section 1
of the 1995 Agreement relating to the Severance Payment (including
without limitation the provisions of clause (i) of such third sentence)
do not apply to any ending of Executive's employment with the Company
on account of any termination described in Section 6 of the Executive
Agreement occurring after the date of a Specified Trigger Event and
before the end of the subsequent Employment Period.
IN ADDITION, the parties agree that any dispute or controversy
between the Company and Executive, whether arising out of or relating to any of
the Agreements or this Confirmation Agreement, the breach of any of the
Agreements or this Confirmation 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
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. The Company shall reimburse
Executive, upon demand, for all costs and expenses (including without limitation
attorneys' fees) reasonably incurred by Executive in good faith in connection
with this arbitration provision, including without limitation in connection with
any such application undertaken by Executive in good faith, as well as for all
such costs and expenses reasonably incurred by Executive in connection with
entering and/or enforcing the award rendered by the arbitrator. 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.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed and Executive has hereunto set his hand, as of the date first
set forth above.
HANDY & XXXXXX
By: /s/ Xxxx X. Xxxxx
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As Its: Xxxx X. Xxxxx
-------------------------
Sr. Vice President and
General Counsel
/s/Xxxxx X. Xxxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxxx
