SUPPLEMENTAL AGREEMENT
----------------------
Notwithstanding the terms and conditions set forth in an Employment Agreement
(the "Agreement") dated October 22, 1996 between you and Handy & Xxxxxx ("H&H),
the terms and conditions stated herein are intended to supplement that Agreement
by adding Change of Control provisions and not to duplicate or enhance the
compensation recited therein. Further, at any time that you are receiving
payments under provisions of paragraph 8 of the Agreement, those terms and
conditions will apply and this Supplemental Agreement will not be in effect or
enforceable by you.
WHEREAS, H&H desires to retain the services of Xxxxxx X. XxXxxxx in the event
of a Change of Control (as defined herein) of H&H;
NOW THEREFORE, in consideration of the agreements and provisions set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows.
1. Term of Agreement. This Agreement shall commence on the date hereof and shall
continue in effect thereafter, unless, not later than any September 30, H&H
shall have given notice that it will not extend this Agreement beyond the
ensuing December 31; provided, further, that, notwithstanding any such notice by
H&H to terminate, if a change of control shall have occurred during the term of
this Agreement, this Agreement shall continue in effect for a period of
twenty-four (24) months beyond the date on which the change of control occurs.
2. Change of Control of H&H. No benefits shall be payable unless there is a
change of control (Change of Control) of H&H. A Change of Control shall be
deemed to have occurred if:
(a) any "person," as such term is used in Sections 13(d) and 14(d) of
the Exchange Act (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or any corporation owned, directly or indirectly, by the
stockholders of H&H in substantially the same proportions as their
ownership of stock of H&H), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of H&H representing 25% or more of the combined voting
power of H&H's then outstanding securities;
(b) during any period of not more than two (2) consecutive years (not
including any period prior to the adoption of the Plan), individuals
who at the beginning of such period constitute the Board of Directors
and any new director (other than a director designated by a person who
has entered into an agreement with H&H to effect a transaction
described in clause (a), (c) or (d) of this Section) whose election by
the Board of Directors or nomination for election by H&H's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute at least
a majority thereof;
(c) the stockholders of H&H approve a merger or consolidation of H&H
with any other corporation, other than (A) a merger or consolidation
which would result in the voting securities of H&H outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) more than 70% of the combined voting power of the
voting securities of H&H or such surviving entity outstanding
immediately after such merger or consolidation or (B) a merger or
consolidation effected to implement a recapitalization of H&H (or
similar transaction) in which no "person" (as hereinabove defined)
acquires more than 50% of the combined voting power of H&H's then
outstanding securities; or
(d) the stockholders of H&H approve a plan of complete liquidation of
H&H or an agreement for the sale or disposition by H&H of all or
substantially all of H&H's assets.
3. Termination Following Change of Control. If any of the events described in
Section 2 above constituting a Change of Control shall have occurred, you shall
be entitled to the benefits provided in Section 4 hereof upon termination of
your employment with H&H during the two (2) year period following the Change of
Control unless such termination is (A) a result of your death or retirement, or
(B) your resignation for other than Good Reason, or (C) your being terminated by
H&H for Disability or for Cause.
(a) Cause. For purposes of this Agreement, "Cause" shall mean your
willful breach of duty in the course of your employment, or your
habitual neglect of your employment duties.
(b) Disability. For purposes of this Agreement, "Disability" shall mean
your absence from your duties with H&H for three hundred sixty-five
(365) consecutive days as a result of your physical or mental illness.
(c) Good Reason. You shall be entitled to terminate your employment for
Good Reason. For the purpose of this Agreement, "Good Reason" shall
mean the occurrence of any of the following circumstances:
(i) the assignment to you of any duties inconsistent
with your status as an Executive Vice President (or any higher
position to which you have been promoted at the time) or as a
substantial diminution in the nature or status of your
responsibilities from
2
those in effect immediately prior to the Change of Control;
(ii) as a reduction in your annual base salary as in
effect on the date of the Change of Control;
(iii) the relocation of the office in which you are
located prior to the Change of Control to a location more than
sixty (60) miles from New York City, except for required
travel on the business of H&H to an extent substantially
consistent with your present business travel obligations;
(iv) or pursuant to an action taken by H&H you are
selectively excluded from a compensation, bonus, stock option
or stock ownership plan otherwise in existence at the time of
the Change of Control or thereafter put into effect for the
benefit of others in a similar situation;
(v) except as a required by law, the failure by H&H
to continue to provide you with benefits at least as favorable
as those enjoyed by you under the employee benefit and welfare
plans of H&H in which you were participating at the time of
the Change of Control or the taking of any action by H&H which
would materially reduce any of the benefits enjoyed by you at
the time of the Change of Control;
(vi) the failure of H&H to obtain a satisfactory
agreement from any successor to assume and agree to perform
this Agreement, as contemplated in Section 5 hereof; or
(vii) any purported termination of your employment
not effected pursuant to a Notice of Termination satisfying
the requirements of Section 3(d) below; for purposes of this
Agreement, no such purported termination shall be effective.
Your continued employment shall not constitute consent to, or as a waiver of
rights with respect to, any circumstance constituting Good Reason hereunder.
(d) Notice of Termination. Any termination of your employment by H&H or
by you shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 7 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.
3
(e) Date of Termination, Etc. "Date of Termination" shall mean thirty
(30) days after the date specified in the Notice of Termination.
4. Compensation Upon Termination. Following a Change of Control of H&H, as
defined herein, upon termination of your employment by (a) H&H other than for
Cause or (b) by you for Good Reason, you shall be entitled to the following
benefits:
(a) H&H shall pay you a severance payment (the "Severance Payment")
equal to one years' 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;
(b) For a twelve (12) month period after termination of your
employment, H&H shall arrange to provide you with life, medical and
dental insurance benefits 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 as a
subsequent employer or as a spouse's employer;
(c) H&H shall pay you the Severance Payment no later than the fifth
(5th) day following the Date of Termination;
5. Successors; Binding Agreement. H&H will require any successor to all or
substantially all of the business and/or assets of H&H to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
H&H is required to perform it. Failure of H&H to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle you to compensation from H&H in the same amount
and on the same terms as you would be entitled to if you had terminated your
employment for Good Reason following a Change of Control of H&H, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. All references to H&H
shall be deemed to include its successors.
(a) This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If you die
while any amount is payable to you hereunder, all such amounts shall be
paid in accordance with the terms of this Agreement to your devisee,
legatee or other designee or, if there is no such designee, to your
estate.
6. Section 280G - Excise Tax Limitation. Notwithstanding other provisions of
this Agreement, in the event of a change of control, as defined in paragraph 2
(a) (b) (c) and (d) herein, payments would only be made to you to the extent
that they are deductible by H&H and not subject to the excise tax provisions of
Section 280G of the Internal Revenue Code.
4
7. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the first page of this Agreement, provided
that all notices to H&H shall be directed to the attention of the Office of the
Vice President and General Counsel of H&H, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by both parties. No waiver by either party at any time of any breach
by the other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or any prior or subsequent time. No agreements or
representations, oral or written, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York. All references to sections of the Code shall be deemed also to refer to
any successor provisions to such sections. Any payments provided for hereunder
shall be paid net of any applicable withholding required under federal, state or
local law.
9. Validity. This invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and
year first written above.
Handy & Xxxxxx
/s/ Xxxxxx X. XxXxxxx /s/ Xxxxx X. Xxxxxxxxx
--------------------------- ---------------------------
by: Xxxxxx X. XxXxxxx by: Xxxxx X. Xxxxxxxxx
Dated as of this 14th day of May, 1997
5
