ex1013to10k06447_12312008.htm


    Exhibit
10.13

     

    AMENDMENT
OF EMPLOYMENT AGREEMENT

     

    THIS
AMENDMENT OF EMPLOYMENT AGREEMENT (“Amendment”) is entered into by and among WHX
Corporation, a Delaware corporation, Handy & Harman, a New York company
(collectively the “Companies”), and Jim McCabe (“Executive”), effective as of
January 1, 2009.

     

    Background

     

    A.           The
Companies and the Executive previously entered into an Employment Agreement,
dated as of February 1, 2007 (“Agreement”).

     

    B.           The
Companies and the Executive wish to amend the Agreement, effective as of January
1, 2009, to comply with the final regulations under Code Section
409A.

     

    In
consideration of the premises, the parties hereby agree to amend the Agreement
as follows, effective January 1, 2009.

     

    Amendment

     

    1.           Subsection
2(b) of the Agreement, regarding the Executive’s annual bonus, shall be amended
by inserting the following sentence to the end thereof:

     

    “Payment
of any annual bonus under this Agreement shall be made at the same time that
other senior-level executives receive their annual incentive compensation awards
in the calendar year following the year earned in accordance with the terms of
the applicable bonus plan, the Companies intend that the bonus will be paid
between January 1st  and
March 15th of the
year following the year that the bonus is earned, but in no event will it be
paid later than December 31st of the
year following the year that the bonus is earned.”

     

    2.           Section
6(a) of the Agreement, regarding termination by the Executive, shall be amended
to read as follows:

     

    “6.           Termination
of Agreement by the Executive.

     

    (a)           This
Agreement may be terminated by the Executive by providing written notice to
either of the Companies within sixty (60) days following a Material Diminution
(as defined below) of the Executive’s position, duties, responsibilities or base
salary compensation with the company or the relocation of WHX’s headquarters to
a location more than 50 miles from Rye, New York (a “Material Diminution or
Relocation Termination Election”).  In the case of a Material
Diminution or Relocation Termination Election by the Executive, such Company or
Companies shall have thirty (30) days following its receipt of written notice of
termination from the Executive to cure such Material Diminution or Relocation.
In the case of a Material Diminution or Relocation Termination Election, if such
Company or Companies does not cure such Material Diminution or Relocation within
the thirty (30) days following its receipt of such Material Diminution or
Relocation Termination Election from the Executive, pursuant to this Section,
termination of Executive’s employment shall be effective at the end of such
thirty (30) day period.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Material
Diminution” shall only mean a situation in which (i) the Executive is no longer
employed as the Senior Vice President of both of the Companies or is not
employed or offered employment in substantially equivalent positions of
substantially equivalent companies, regardless of what, if any, additional
positions Executive may from time to time hold or not hold with each of the
Companies or its subsidiaries or affiliates, or (ii) the Executive suffers a
material diminution of the duties or responsibilities commensurate with the
position of Senior Vice President of the Companies, or (iii) the Executive
suffers a reduction of the Executive’s base salary compensation below the amount
set forth herein.

     

    3.           The
following sentence shall be added after the third sentence of Section 15 of the
Agreement:

     

    “With
respect to the payments to which the Participant would have been entitled had he
survived, such payments shall be paid to the Participant’s estate pursuant to
the same schedule that the Participant would have received them had he survived,
with the initial payment to be made as soon as administratively practicable
after the estate is opened, such payments to include all missed periodic
payments.”

     

    4.           A
new Section 27 is added to the Agreement, to read as follows:

     

    “27. Code
Section 409A

     

    (a)           The
parties hereto intend that all benefits and payments to be made to the Executive
hereunder will be provided or paid to him in compliance with all applicable
provisions, or an exemption or exception from the applicable provisions of,
section 409A of the Internal Revenue Code of 1986 as amended (“Code”) and the
regulations issued thereunder, and the rulings, notices and other guidance
issued by the Internal Revenue Service interpreting the same, and this Agreement
shall be construed and administered in accordance with such intent. The parties
also agree that this Agreement may be modified, as reasonably requested by
either party, to the extent necessary to comply with all applicable requirements
of, and to avoid the imposition of any additional tax, interest and penalties
under, the section 409A of the Code in connection with, the benefits and
payments to be provided or paid to the Executive hereunder.  Any such
modification shall maintain the original intent and benefit to the Companies and
the Executive of the applicable provision of this Agreement, to the maximum
extent possible without violating section 409A of the Code.

     

    (b)           All
payments to be made upon a termination of employment under this Agreement may
only be made upon a “separation from service” as defined under section 409A of
the Code. For purposes of section 409A of the Code, the right to receive a
series of installment payments under this Agreement shall be treated as a right
to a series of separate payments. Further, for purposes of the limitations on
nonqualified deferred compensation under section 409A of the Code, each payment
of compensation under this Agreement shall be treated as a separate payment. In
no event may the Executive, directly or indirectly, designate the calendar year
of a payment.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (c)           Severance
benefits under this Agreement are intended to be exempt from section 409A of the
Code under the “separation pay exception,” to the maximum extent applicable. Any
payments hereunder that qualify for the “short-term deferral” exception or
another exception under section 409A of the Code shall be paid under the
applicable exception.

     

    (d)           Notwithstanding
the foregoing or anything to the contrary contained in any other provision of
this Agreement, if the Executive is a “specified employee” at the time of his
“separation from service” within the meaning of section 409A of the Code, then,
to the extent required by section 409A, any payment hereunder designated as
being subject to this Section shall not be made until the first business day
after the expiration of six (6) months from the date of his separation from
service.  On such date, there shall be paid to the Executive in a
single cash lump sum, an amount equal to aggregate amount of the payments
delayed pursuant to the preceding sentence.  Notwithstanding the
foregoing, if the Executive dies within such six (6) months period, then there
shall be paid to the estate of Executive within ninety (90) days of Executive’s
death, an amount equal to the aggregate amount of the payments delayed pursuant
to the second preceding sentence.

     

    The term
“specified employee” shall mean any individual who, at any time during the
twelve (12) month period ending on the identification date (as determined by the
Companies or their Delegates, is a specified employee under section 409A of the
Code, as determined by the Companies or their Delegates.  The
determination of “specified employees,” including the number and identity of
persons considered “specified employees” and identification date, shall be made
by the Companies or their Delegates in accordance with the provisions of
sections 416(i) (without respect to paragraph (5) thereof) and 409A of the
Code.

     

    All
reimbursements provided under this Agreement shall be made or provided in
accordance with the requirements of section 409A of the Code, including, where
applicable, the requirement that (i) any reimbursement is for expenses incurred
during the Executive’s lifetime (or during a shorter period of time specified in
this Agreement), (ii) the amount of expenses eligible for reimbursement during a
calendar year may not affect the expenses eligible for reimbursement in any
other calendar year, (iii) the reimbursement of an eligible expense will be made
on or before the last day of the taxable year following the year in which the
expense is incurred, and (iv) the right to reimbursement is not subject to
liquidation or exchange for another benefit. Notwithstanding the foregoing, to
the extent that the recovery of expenses under Section 24 hereof is not
excludible from gross income under Coder Section 162 as a business expense
incurred in connection with the performance of service as an employee (ignoring
applicable limitation based upon adjusted gross income) but cannot be paid
within the limited period of time set forth in Treasury Registration Section
1.409A-1(b)(9)(v)(E) because the prevailing party has not then been determined,
the recovery shall be paid by March 15th of the year following the year that the
prevailing party has been determined. In the event that multiple issues are
presented, the prevailing party shall be the party that has substantially
prevailed with respect to the most significant issue or set of issues
presented.”

     

    5.           In
all other respects the Agreement shall be and remain unchanged.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    The
Companies, by their duly authorized officers, and the Executive have executed
this Amendment, effective as of January 1, 2009.

     

    
      
        	 
      	
                EXECUTIVE

              
	 
      	 
      
	 
      	
                
                  /s/
      Jim McCabe

                

              
	 
      	
                Jim
      McCabe

              


      

    

    


    
      
        	 
      	
                WHX
      CORPORATION

              
	 
      	 
      
	 
      	
                By:

              	
                
                  /s/
      Peter T. Gelfman

                

              
	 
      	 
      	
                Name:

              	
                Peter
      T. Gelfman

              
	 
      	 
      	
                Title:

              	
                Secretary

              


      

    

    


    
      
        	 
      	
                HANDY
      & HARMAN

              
	 
      	 
      
	 
      	
                By:

              	
                
                  /s/
      Peter T. Gelfman

                

              
	 
      	 
      	
                Name:

              	
                Peter
      T. Gelfman

              
	 
      	 
      	
                Title:

              	
                Secretary