EXECUTIVE AGREEMENT
Agreement dated as of September 2, 1986 between Handy & Xxxxxx, a New
York corporation ("Company") and __________________ ("Executive").
WHEREAS, Executive has been employed by Company continuously for many
years and has rendered valuable services to Company; and
WHEREAS, Company desires to continue to benefit from Executive's
knowledge and experience as a full-time executive employee and considers such
employment a vital element in protecting and enhancing the best interests of the
Company, and Executive desires to continue in full-time employment with the
Company.
NOW THEREFORE, in consideration of the continued employment of Executive
by Company, the continued service by Executive to Company, and the mutual
covenants contained herein, the parties agree as follows:
1. Employment. Subject to the right of the Company to take any and all
action of the kind specified in Section 3(a) through (h) prior to the
acquisition of 25% or more of the outstanding shares of Company stock as
specified in Section 3, the Company shall continue to employ Executive in his
current capacity as Vice President-Precious Metals and Executive shall continue
to serve to the best of his ability in such capacity, devoting substantially all
his business time thereto.
2. Compensation. Executive's compensation shall consists of:
(a) A base annual salary at an annual rate at least equal to
Executive's base annual salary on the date of this Agreement and as
the same
may be increased from time to time by Company's board of directors
("Base Salary").
(b) Such additional incentive or bonus compensation
("Incentive Pay") which may be granted to Executive specifically or to
which Executive now or hereafter may be entitled under any plan or
arrangement maintained by Company for its executive or managerial
employees including Company's Management Incentive Plan, or for
employees generally, provided that, for purposes of this Section 2
only, Executive shall not be entitled, except in the sole discretion
of Company's board of directors, to future awards under the Company's
existing stock option plans and any other plan involving stock options
or the purchase of Company shares (collectively, such stock option and
share purchase plans are herein referred to as the "Non-Continuing
Benefits").
(c) All benefits to which Executive shall be entitled in or
under any and all pension plans ("Pension Benefits"), and in or under
any and all employee benefit plans and group life insurance, group
health insurance and group accident insurance programs ("Fringe
Benefits"), maintained by Company for its executive or managerial
employees.
(d) Reimbursement for all reasonable expenses ("Expense
Reimbursement") incurred by Executive in connection with the
performance of duties for the Company, such Expense Reimbursement to
be made in a manner consistent with the policy of Company in force at
the time of such Expense Reimbursement.
(e) Such number of days vacation per year ("Vacation") as
Company granted to Executive in the calendar year 1985 and as Company
shall hereafter grant to its executive or managerial employees without
any
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loss of Base Salary, Incentive Pay, Pension Benefits, Fringe Benefits
or Expense Reimbursement to which the Executive is entitled.
3. Trigger Events. If 25% or more of the outstanding shares of Company
stock having voting power to elect a majority of the board of directors of the
Company shall after the date of this Agreement be acquired by one or more
persons, firms, corporations or other entities acting alone or as a coordinated
group, and thereafter, without the express prior written consent of Executive,
any of the following events shall occur, such event shall be deemed a Trigger
Event:
(a) There shall be a material diminution in Executive's
position, duties, responsibilities and status with Company as the same
are in effect on the date of this Agreement or as the same may be
increased in the future.
(b) Executive's reporting responsibilities, titles or
offices in effect on the date of this Agreement or as the same may be
increased in the future shall be materially reduced.
(c) Executive shall be removed from or shall not be
re-elected to the position referred to in paragraph 1, provided that
this Section 3(c) shall not be deemed to include termination of
Executive's employment for "cause" (defined below) or as a result of
Executive's substantial disability, death or retirement pursuant to a
Company-sponsored retirement plan. For all purposes of this Agreement,
"cause" shall mean (i) willful malfeasance in office, or (ii)
misconduct by Executive that is demonstrably materially injurious to
the Company monetarily or otherwise.
(d) Executive's Base Salary shall be reduced.
(e) Except for awards under any Non-Continuing Benefit, the
Company shall fail to continue in effect any Company plan providing
for
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Incentive Pay, Pension Benefits, Fringe Benefits or Expense
Reimbursement in effect on the date of this Agreement without adopting
a replacement plan or plans which is or are, in the aggregate, no less
favorable to Executive than those Executive enjoys at the date of this
Agreement.
(f) Company's principal executive offices shall be moved to
a location outside New York County or Westchester County, New York, or
Fairfield County, Connecticut.
(g) Company shall require Executive to be based anywhere
other than at Company's principal executive offices or at the location
where Executive is based at the date of this Agreement, or if
Executive consents to such required move, Company fails to reimburse
Executive for moving expenses and any difference between the sale
price of his old principal residence and the purchase price of his new
principal residence in connection with such move.
(h) The number of days per years allowed for Executive's
Vacation is reduced.
(i) Company breaches any provision of this Agreement.
(j) Any successor to Company fails to assume this Agreement.
4. Specified Trigger Event. Upon the occurrence of a Trigger Event,
Executive, at his sole option, may within 90 days after the date of such Trigger
Event, by notice to Company designate such Trigger Event as a Specified Trigger
Event. Failure of Executive to designate any Trigger Event as a Specified
Trigger Event shall not affect, or constitute a waiver of, the right of
Executive to designate any subsequent Trigger Event of the same or a different
nature as a
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Specified Trigger Event, it being understood that only one Trigger Event may be
designated as a Specified Trigger Event.
5. Guarantee. In order to protect Company against the loss of key
management executives, if any Trigger Event should occur and be designated by
Executive as a Specified Trigger Event within the 90 day period specified in
Section 4, the Company shall continue to employ Executive for a period of three
years from the first day of the calendar month following the date of the
Specified Trigger Event (the "Employment Period"). During the Employment Period,
Executive shall be entitled to receive, and Company guarantees to pay to
Executive, the same Base Salary, Incentive Pay, Pension Benefits, Fringe
Benefits, Expense Reimbursement and Vacation as Executive was entitled to
receive immediately before the Specified Trigger Event.
6. Termination of Employment. If, on or after the date of a Specified
Trigger Event and before the end of the subsequent Employment Period, (x)
Company shall terminate Executive's employment for any reason other than for
"cause" or (y) Executive shall elect to terminate his employment, then in either
event, after the date of termination of Executive's employment (the "Termination
Date"), Company shall:
(a) Pay Executive, his estate or beneficiaries in a lump sum
by the fifth business day after the Termination Date:
(i) an amount equal to Executive's Base Salary
from the Termination Date to the end of the Employment
Period, plus
(ii) an amount equal to (A) the Incentive Pay that
Executive became entitled to receive for the most recent
calendar year for which Executive was actually awarded
Incentive Pay multiplied by (B) the number of years or
portions thereof (computed on the basis
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of a 365 day year) from the beginning of the calendar year
in which the Termination Date falls to the end of the
Employment Period.
(b) Pay Executive on the date Executive begins to receive
retirement benefits (in addition to any Pension Benefits to which
Executive shall be entitled on the Termination Date) an amount equal
to the then present value of the actuarially determined difference
between the aggregate retirement benefits actually to be received by
Executive and those that would have been received had Executive been
employed until the end of the Employment Period at a Base Salary equal
to the Base Salary in effect immediately before the date of the
Specified Trigger Event.
(c) Continue for the benefit of Executive all Fringe
Benefits to which Executive shall be entitled immediately before the
date of the Specified Trigger Event (or substantially equivalent
insurance and benefit coverage) from such date until the end of the
Employment Period.
7. Agreements and Policy Statements. Executive shall execute or
re-execute each of the following agreements and policy statements of the
Company:
"Policy Statement on Integrity in the Conduct of the
Company's Business"
"Agreement Concerning Inventions and Confidential
Information"
"Antitrust Compliance Policy of Handy & Xxxxxx and
Subsidiaries"
During the period of time coincidental with the Employment Period, Executive
shall not enter into any business directly or indirectly in which the Company or
any of its then subsidiaries is engaged at the time of the Termination Date.
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8. Disputes. Any dispute hereunder as to the existence of "cause" or of a
Trigger Event shall be submitted to arbitration in accordance with New York law
and the procedures of the American Arbitration Association.
9. Merger of Company. If Company shall emerge into or consolidate with
another corporation, or transfer or sell all or substantially all of its assets
to another corporation or other entity, Company shall require, as a condition to
such transaction, that such successor corporation or entity assume the
obligations of Company hereunder. This Agreement shall thereupon be binding upon
and inure to the benefit of the successor corporation or other entity which
shall be obligated to perform all of the terms and conditions hereof, whether or
not such successor expressly assumes such obligations.
10. Assignability. This Agreement is personal in nature and neither
Executive nor Company shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder, except (i) as
provided in Section 9 and (ii) as Executive's right to receive payments
hereunder may extend to his estate and beneficiaries as provided in Section 6.
Executive's right to receive payments hereunder shall not be assignable or
transferable, whether by pledge, creation of a security interest or otherwise,
except for a transfer of any such right by will or by the laws of descent or
distribution. The foregoing shall not prevent Executive from assigning ownership
of or an interest in or designating beneficiaries of, any insurance policy or
benefit plan except as may be prohibited by the terms thereof.
11. Governing Law. This Agreement shall in all respect be construed and
enforced in accordance with, and governed by, the laws of the State of New York,
irrespective of the location of Executive's residence or principal place of
employment.
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12. Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall as to such jurisdiction be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof in any such jurisdiction.
Unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which renders
any provision hereof invalid or unenforceable in any respect.
13. Notices and Consents. All notices and consents given by a party
pursuant to this Agreement shall be in writing and shall be delivered by hand
against receipt or sent by certified mail, return receipt requested, to the
other party at the following addresses:
If to Company:
Handy & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Secretary
If to Executive:
[ ]
[ ]
[ ]
or to such other address as either party shall give to the other by a notice.
14. Sole Agreement; Changes. This instrument contains the entire
agreement between the parties. It may not be changed orally; it may only be
changed by a written agreement or instrument signed by both parties.
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IN WITNESS WHEREOF, the parties thereto have executed this Agreement as
of the date first above written.
HANDY & XXXXXX
By
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President
Executive
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