EXECUTIVE AGREEMENT
Agreement dated as of July 1, 1989 between Handy & Xxxxxx, a
New York corporation ("Company") and Xxxxx X. Xxxxxxxxx ("Executive").
WHEREAS, Company desires 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
Com pany, 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 Chairman of the Board 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 consist 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 ("Pen sion 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 198 and as
Company shall hereafter grant to its executive or managerial employees without
any 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 malfea sance
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 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 year 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 desig-
nate 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 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 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 in at the time of the Termination Date.
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 merge 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 respects 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.
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:
Xxxxx X. Xxxxxxxxx
000 Xxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
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.
IN WITNESS WHEREOF, the parties thereto have executed this
Agreement as of the date first above written.
HANDY & XXXXXX
By /s/ Xxxxxxx X. Xxxxxx
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President
Executive
/s/ Xxxxx X. Xxxxxxxxx
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