ex1019to10k06447_12312008.htm


    Exhibit
10.19

     

    AMENDMENT
OF EMPLOYMENT AGREEMENT

     

    THIS
AMENDMENT OF EMPLOYMENT AGREEMENT (“Amendment”) is entered into by and between
WHX Corporation, a Delaware corporation (“Company”), and Peter T. Gelfman
(“Executive”), effective as of January 1, 2009.

     

    Background

     

    A.           The
Company and the Executive previously entered into an Employment Agreement, dated
as of April 7, 2008 (“Agreement”).

     

    B.           The
Company 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(c) 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 Company intends 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 the
Company 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 the Company’s headquarters to
a location more than 50 miles from White Plains, New York (a “Material
Diminution or Relocation Termination Election”). In the case of a Material
Diminution or Relocation Termination Election by the Executive, the Company
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 the
Company 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 President and Chief Executive Officer of the Company 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 the Company
Group, or (ii) the Executive suffers a material diminution of the duties or
responsibilities commensurate with the position of President and Chief Executive
Officer of the Company, or (iii) the Executive suffers a material reduction of
the Executive’s base salary compensation below the amount set forth
herein.”

       

    

    3.           The
following sentence shall be added after the second 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, without interest thereon.”

     

    4.           Section
7(d) of the Agreement shall be deleted in its entirety.

     

    5.           A
new Section 26 is added to the Agreement, to read as follows: 

     

    “26. 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 Company 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
Company or its delegate), is a specified employee under section 409A of the
Code, as determined by the Company (or its delegate). The determination of
“specified employees,” including the number and identity of persons considered
“specified employees” and identification date, shall be made by the Company (or
its delegate) 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.”

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

    The
Company, by its duly authorized officer, and the Executive have executed this
Amendment, effective as of January 1, 2009.

     

    


    
      	 
      	
              EXECUTIVE

            
	 
      	 
      
	 
      	
              
                /s/
      Peter T.
      Gelfman                   
      12/15/08

              

            
	 
      	
              Peter
      T. Gelfman

            


    

    


    
      	 
      	
              WHX
      CORPORATION

            
	 
      	 
      
	 
      	
              By:

            	
              
                /s/
      James F.
      McCabe                   
      12/15/08

              

            
	 
      	 
      	
              Name:

            	
              James
      F. McCabe

            
	 
      	 
      	
              Title:

            	
              SVP/CFO