EX-10.5



 





     Exhibit 10.5



EMPLOYMENT AGREEMENT




     THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into on this 30th day of
November, 2006, by and between Horsehead Corporation, a Delaware corporation (the
“Company”) and James M. Hensler III (“Employee”).



          WHEREAS, Employee and the Company have agreed that, upon the execution and delivery of this
Agreement, any and all employment and compensation agreements, arrangements and understandings (of
any kind or nature) between Employee, on the one hand, and the Company, its direct and indirect,
subsidiaries, parents, and related entities, on the other hand, whether written and oral, shall
terminate and be of no further force or effect; and




     WHEREAS, the Company and Employee have agreed upon, and set forth herein, the terms and
conditions of Employee’s continued employment with the Company.


NOW, THEREFORE, in consideration of the premises and mutual covenants 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. Employment. The Company shall employ Employee, and Employee hereby accepts
employment with the Company, upon the terms and conditions set forth in this Agreement for the
period beginning on the date hereof and ending as provided in Section 4 hereof (the
“Employment Period”).




          2. Position and Duties.




          (a) During the Employment Period, Employee shall serve as Chief Executive Officer of the
Company and its Subsidiaries, and shall have the normal duties, responsibilities, functions and
authority of a Chief Executive Officer, provided that Employee’s duties, responsibilities,
functions and authority are all subject to the power of the Company’s board of directors (the
“Board”) to expand or limit such duties, responsibilities, functions and authority, and to
override actions of the officers and employees of the Company. During the Employment Period,
Employee shall render such services to the Company as the Chief Executive Officer and President
and/or the Board may from time to time direct.




          (b) During the Employment Period, Employee shall report to the Board and shall devote his best
efforts and his full business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and affairs of the Company, its
current and future, direct and indirect, Subsidiaries, parents, and related entities or affiliates.




          (c) Employee shall perform his duties, responsibilities and functions to the Company and its
Subsidiaries hereunder to the best of his abilities in a diligent, trustworthy, businesslike and
efficient manner and shall comply with the Company’s current policies and procedures in all
material respects. During the Employment Period, Employee shall not serve as an officer or
director of, or otherwise perform services for compensation for, any other entity without the prior
written consent of the Board; provided that Employee may serve as an officer

 









 








or director of, or otherwise participate in, purely educational, welfare, social, religious or
civic organizations so long as such activities do not interfere with Employee’s employment.




          (d) For purposes of this Agreement, “Subsidiaries” shall mean any corporation or other
entity of which the securities or other ownership interests having the voting power to elect a
majority of the board of directors or other governing body are, at the time of determination, owned
by the Company, directly or through one or more Subsidiaries.




          3. Compensation and Benefits.




          (a) During the Employment Period, Employee’s base salary shall be $400,000 per annum (the
“Base Salary”). Employee’s Base Salary shall be payable by the Company in regular
installments in accordance with the Company’s general payroll practices. In addition, during the
Employment Period, Employee shall be entitled to receive employee benefits consistent with those
received by other employees of the Company including, but not limited to, health, dental, life,
disability, paid vacation and participation in the 401(k) plan (the “Benefit Programs”) as
determined by the Board. In addition to the Base Salary, Employee shall be eligible to receive an
annual performance-based bonus, in an amount up to 100 % of the Base Salary (the “Performance
Bonus”), the actual amount of the Performance Bonus shall be established by the Board (it being
understood that the target bonus shall be 50% of the Base Salary), in its sole discretion, on the
same basis as other employees of the Company with similar positions, responsibilities and
seniority.




          (b) During the Employment Period, the Company shall reimburse Employee for all ordinary and
reasonable expenses incurred by him in the course of performing his duties and responsibilities
under this Agreement which are consistent with the Company’s policies in effect from time to time
with respect to travel, entertainment and other business expenses for the Company’s senior
executives, subject to the Company’s requirements with respect to reporting and documentation of
such expenses. The Company shall make prompt payment of such reimbursements to Employee following
receipt and verification of such submitted expenses in accordance with the Company’s policies.




          (c) All amounts payable to Employee as compensation hereunder shall be subject such federal,
state and local taxes as may be required to be withheld pursuant to any applicable law or
regulation.




          (d) Employee shall be entitled to such vacation and benefits provided by the Company as the
Company may from time to time establish for employees of similar positions, responsibilities and
seniority. Notwithstanding the immediately preceding sentence, Employee shall be entitled to three
weeks of paid vacation per annum.




          (e) Employee shall be eligible to participate in a long-term equity incentive plan or similar
arrangement (the “Plan”) of the Company’s indirect parent, Horsehead Holding Corp., a
Delaware corporation (“Parent”). An aggregate of 5% of the outstanding shares of common
stock of Parent on the date the Plan is adopted shall be reserved for issuance under the Plan, to
be issued pursuant to awards granted by the board of directors or compensation committee of the
board of directors of Parent from time to time at its sole discretion.




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          4. Term.




          (a) The Employment Period shall be five (5) years beginning on the date hereof, and may be
renewed and/or extended thereafter by the parties hereto only pursuant to a written extension
signed by the Company and Employee. The Employment Period may be terminated at any time prior to
the end of such five-year term by either the Company or Employee for any reason. Any termination
of the Employment Period by the Company shall be effective as specified in a written notice from
the Company to Employee. Regardless of the reason for such termination, Employee shall be entitled
to receive Employee’s Base Salary earned through the date of termination. Unless Employee is
terminated for Cause, Employee shall be entitled to receive Employee’s Performance Bonus approved
by the Board, but not paid prior to the date of termination. Upon termination, Employee may be
entitled to additional payments pursuant to Section 4(b) below, if and as applicable.




          (b) If Employee’s employment with the Company is terminated during the Employment Period by
the Company without Cause or by the Employee with Good Reason, Employee shall be entitled to
receive, as a severance payment, payable in regular installments in parallel with the Company’s
general payroll practices over the course of the period beginning on the date of termination (the
“Termination Date”) and ending on the two year anniversary of the Termination Date (the
period Employee actually receives severance payments, if any, the “Severance Period”), an
amount equal to regular installments of his annual Base Salary (as determined in accordance with
the provisions of Section 3(a)). In addition, if Employee has earned and been granted a
bonus which has not yet been paid, Employee shall be entitled to receive, on the same date as the
other employees of the Company receive their bonus payments, a payment equal to such earned but
unpaid bonus.




          (c) Notwithstanding anything in this Agreement to the contrary, it shall be a condition to
receiving any of the severance payments set forth in Section 4(b) that Employee execute a
separation release in form and substance reasonably acceptable to the Company (a “Separation
Release”). The Separation Release shall be a written agreement whereby Employee agrees to
waive and release any claims arising from his employment or consulting relationship with the
Company that may, by law, be waived and released, including without limitation, claims under Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Employee Retirement Income
Security Act of 1967, the Age Discrimination in Employment Act of 1967, as amended (including the
Older Workers Benefit Protection Act), the Fair Labor Standards Act, the Family Medical Leave Act
of 1993, the Americans with Disabilities Act of 1990, similar federal state and local laws, and
other causes of action arising from situations, circumstances, events or occurrences relating to
the employment or consulting relationship.




          (d) Unless otherwise approved by the Board, if (A) Employee’s employment with the Company is
terminated by the Company for Cause, (B) Employee resigns or terminates his employment with the
Company at any time, or (C) Employee dies or suffers a Disability (as defined below) Employee shall
only be entitled to receive (i) his accrued and unpaid Base Salary through the Termination Date or
expiration, (ii) any accrued but unused vacation determined in accordance with the Company’s
policies for accrued vacation time at the time of such termination, and (iii) any unreimbursed
expenses incurred in accordance with the Company’s policies for business expenses at the time of
such termination, and shall not be entitled to any

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other salary, compensation, benefits or bonuses from the Company or its affiliates thereafter,
except as expressly required by applicable law.




          (e) Except as otherwise expressly provided herein, all of Employee’s rights to salary, bonus,
employee benefits and other compensation hereunder which would have accrued or become payable after
the termination or expiration of the Employment Period shall cease upon such termination or
expiration, other than those expressly required under applicable law (such as COBRA). The Company
may offset any documented amounts Employee owes it against any amounts it owes Employee hereunder.




          (f) For purposes of this Agreement, “Cause” shall mean any of (i) a breach by Employee
of Sections 5 through 10 of this Agreement or any other agreement between Employee
and the Company, (ii) the commission by Employee of, or the pleading by Employee of guilty or no
contest to, (x) any felony or (y) any crime involving moral turpitude on his part which the Board
reasonably determines would have an adverse effect on (A) the reputation of the Company or its
affiliates or their relationships with suppliers, customers, employees or others, (B) Employee’s
ability to effectively perform his duties as an officer or employee of the Company and its
Subsidiaries or in accordance with this Agreement, or (C) the business, operations or financial
condition of the Company and its affiliates, (iii) the commission of fraud or embezzlement on the
part of Employee (iv) a failure by Employee to comply with the directives and policies of the
Board, (v) gross negligence or reckless activity in the conduct of the business of the Company or
any of its affiliates (including, without limitation, a material breach of any Company employee
manual now existing or hereinafter instituted), (vi) material abandonment of duties, and/or (vii)
willful action taken for the purpose of harming the Company or any of its affiliates.




          (g) For purposes of this Agreement, “Disability” shall mean Employee’s inability to
perform the essential duties, responsibilities and functions of his position with the Company and
its affiliates as a result of any mental or physical disability or incapacity even with reasonable
accommodations of such disability or incapacity provided by the Company and its Subsidiaries or if
providing such accommodations would be unreasonable, all as determined by the Board in its
reasonable good faith judgment. Employee shall cooperate in all respects with the Company if a
question arises as to whether he has become disabled (including, without limitation, submitting to
an examination by a medical doctor or other health care specialists selected by the Company and
authorizing such medical doctor or such other health care specialist to discuss Employee’s
condition with the Company).




          (h) For purposes of this Agreement, “Good Reason” shall mean a substantial diminution
in Employee’s responsibilities to the Company.




          5. Intellectual Property, Inventions and Patents. Employee acknowledges that all
inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports,
ideas, software, firmware, logos, trade secrets and all similar or related information (whether or
not patentable, copyrightable or subject to trade secret protection) (“Developments”) which
are conceived, developed, reduced to practice or made by Employee either solely or jointly with
others while employed by the Company or any of its affiliates on or after the date hereof
(“Work Product”) belong to the Company. Employee acknowledges that,

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except as set forth below, all Work Product shall be the sole and exclusive property of the
Company and hereby assigns and agrees to assign the same to the Company. Employee shall promptly
disclose such Work Product to the Board and, at the Company’s expense, perform all actions
reasonably requested by the Board (whether during or after the Employment Period) to establish and
confirm such ownership (including, without limitation, assignments, consents, powers of attorney
and other instruments). Employee acknowledges that all copyrightable Work Product shall be deemed
to constitute “works made for hire” under the U.S. Copyright Act of 1976, as amended, and that the
Company shall own the entire copyright in such Work Product. To the extent any copyrightable Work
Product is not deemed a work made for hire, Employee hereby assigns and agrees to assign the same
to the Company. Employee understands, however, that this Agreement does not obligate Employee to
assign to the Company and the Company has no rights in any Work Product that Employee developed for
which no equipment, supplies, facility, or trade secret information of the Company was used and
which was developed entirely on Employee’s own time, unless: (a) such Work Product relates (i) to
the Company’s business or (ii) to the Company’s actual or demonstrably anticipated research or
development, or (b) the Work Product results from any work performed by Employee for the Company.
Employee has identified and listed on Schedule A to this Agreement all Developments that
are or were owned by Employee or were conceived, developed, reduced to practice or made by Employee
alone or jointly with another person prior to Employee’s employment with the Company. If no such
Developments are listed, Employee represents that Employee does not now nor has Employee ever
owned, nor has Employee made, any such Developments.




          6. Protection of Company Property. Employee shall not, at all times during his
employment and thereafter, use or permit others to use materials, equipment, software, electronic
media or other Company property for personal purposes. Upon termination of Employee’s employment
with the Company, Employee will deliver to the Company all property belonging to the Company or any
of its affiliates and will not retain any copies or reproductions of correspondence, memoranda,
reports, drawings, photographs, software, electronic media or documents containing Confidential
Information (as defined below) or relating in any way to the business of the Company or any of its
affiliates.




          7. Corporate Opportunity. From the date hereof until the date that Employee is no
longer an employee of the Company, Employee shall submit to the Board all business, commercial and
investment opportunities or offers presented to Employee or of which Employee becomes aware which
relate to the business of the Company (“Corporate Opportunities”). Unless approved by the
Board, Employee shall not accept or pursue, directly or indirectly, any Corporate Opportunities on
Employee’s own behalf.




          8. Non-Disparagement. Employee agrees that, so long that he is an employee of the
Company or any of its affiliates and for a period of twelve (12) months thereafter, Employee shall
not directly or indirectly through another person or entity make any negative or disparaging
statements or communications regarding the Company or any of its affiliates.




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          9. Confidential Information.




          (a) Obligation to Maintain Confidentiality. Employee agrees that he will not, whether
during his service as an employee of the Company or its affiliates or at any time thereafter, and
will not permit others to, publish, divulge, disclose, communicate, or use to the detriment of the
Company or its affiliates or any other person, firm or entity, Confidential Information or trade
secrets relating to the Company or its affiliates, including, without limitation, business
strategies, operating plans, acquisition strategies (including the identities of (and any other
information concerning) possible acquisition candidates), pro forma financial information, market
analysis, acquisition terms and conditions, personnel information, product information, sources of
leads and methods of obtaining new business, know-how, customer lists and relationships, supplier
lists and relationships, or other non-public proprietary and Confidential Information relating to
the Company or its affiliates. The foregoing confidentiality agreement shall not apply if the
communication (i) is required in the course of performing his duties as an employee of the Company
or its affiliates, (ii) is made with the Board’ written consent, (iii) relates to information that
is or becomes generally known by the public other than as a result of a breach of this Agreement by
Employee, or (iv) is required to be disclosed by law or judicial or administrative process;
provided, that, in the case of clause (iv), Employee shall provide the Company with prompt prior
written notice of such requirement and the terms of and circumstances surrounding such requirement
so that the Company may seek an appropriate protective order or other remedy, or waive compliance
with the terms of this Agreement, and Employee shall provide such cooperation with respect to
obtaining a protective order or other remedy as the Company shall reasonably request. If a
protective order or other remedy is not obtained, or if the Company is required to waive compliance
with the provisions hereof, Employee will furnish only that portion of such Confidential
Information or trade secrets which, as he is advised in a written opinion by his counsel, he is
legally required to furnish. Employee shall use reasonable care to safeguard Confidential
Information and to protect it against disclosure, misuse, espionage, loss and theft. Employee
agrees to deliver to the Company at the termination or expiration of the Employment Period, or at
any other time the Company may request in writing, all memoranda, notes, plans, records, reports
and other documents (and copies thereof) relating to the business of the Company and its affiliates
(including, without limitation, all acquisition prospects, lists and contact information) which he
may then possess or have under his control.




          (b) The term “Confidential Information” as used in this Agreement shall mean all
information (whether or not specifically identified as confidential), in any form or medium, that
is disclosed to, or developed or learned by, Employee in the performance of duties for, or on
behalf of, the Company or its affiliates, or that relates to the business, services or research of
the Company or its affiliates or any of their investors, partners, affiliates, strategic alliance
participants, officers, directors, employees or stockholders, including, without limitation: (i)
internal business information (including, without limitation, information relating to strategic
plans and practices, business, accounting, financial or marketing plans, practices or programs,
training practices and programs, salaries, bonuses, incentive plans and other compensation and
benefits information and accounting and business methods); (ii) identities of, individual
requirements of, specific contractual arrangements with, and information about, the Company, its
affiliates and their confidential information; (iii) industry research compiled by, or on behalf
of,

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the Company or its affiliates, including without limitation, identities of potential target
companies, management teams, and transaction sources identified by, or on behalf of, the Company or
its affiliates; (iv) compilations of data (including, without limitation, the form or format of
information that may comprise or include information otherwise not deemed confidential as provided
in the following paragraph) and analyses, processes, methods, techniques, systems, formulae,
research, records, reports, manuals, documentation, models, track and performance records, data and
data bases relating thereto; and (v) computer software documentation, data and data bases and
updates of any of the foregoing; provided, however, “Confidential Information” shall not
include any information that has become generally known to and widely available for use within the
industry other than as a result of the acts or omissions of Employee or a person that Employee has
direct control over to the extent such acts or omissions are not authorized by the Company in the
performance of such person’s assigned duties for the Company.




          (c) Third Party Information. Employee understands that the Company or its affiliates
will receive from third parties Confidential Information or proprietary information (“Third
Party Information”) subject to a duty on the Company or its affiliates’ part to maintain the
confidentiality of such information and to use it only for certain limited purposes. During
Employee’s employment with the Company and thereafter, and without in any way limiting the
provisions of Section 9(a) above, Employee will hold Third Party Information in the
strictest confidence and will not disclose to anyone (other than personnel of the Company or its
affiliates or agents who need to know such information in connection with their work for the
Company or its affiliates or agents) or use, except in connection with his work for the Company or
its affiliates, Third Party Information unless expressly authorized by a member of the Board in
writing.




          10. Noncompetition; Non-Solicitation. Employee acknowledges that during the course of
his employment with the Company pursuant to this Agreement, he has and will become familiar with
the Company’s trade secrets and with other confidential information concerning the Company and that
his services will be of special, unique and extraordinary value to the Company. Therefore,
Employee agrees that:




          (a) Noncompetition. Until the later of (i) the end of the Severance Period (if any)
and (ii) twelve (12) months after Employee is no longer an employee of the Company or any of its
affiliates or subsidiaries (so long as the Company is not in breach of its obligations to Employee
under Section 4(b) hereof), Employee shall not, within the United States, or any other
state or territory in which the Company or its affiliates conduct business at the time of the
Termination Date, directly or indirectly own, manage, control, participate in, consult with, render
services for, or in any manner engage in any business competing with the business of the Company or
its affiliates, as such business exist or are in the process of being implemented during the
Employment Period or on the date of the termination or expiration of the Employment Period, within
any geographical area in which the Company or its affiliates engage or plan to engage in such
businesses; provided, however, that Employee may own, directly or indirectly, solely as an
investment, publicly traded securities of any entity if Employee (a) is not a controlling person
with respect to such entity and (b) does not, directly or indirectly, own two (2%) percent or more
of any class of the securities of such entity.




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          (b) Nonsolicitation. For so long that Employee is an employee of the Company or any
of its affiliates or subsidiaries and for a period of twenty-four (24) months thereafter, Employee
shall not directly or indirectly through another entity (i) induce or attempt to induce an employee
of, or any consultant working exclusively for, the Company or any of its affiliates (each such
employee or consultant, a “Restricted Employee”) to leave the employ of, or stop rendering
services to, the Company or such affiliate or in any way interfere with the relationship between
the Company or its affiliates and any Restricted Employee, (ii) hire any person who was a
Restricted Employee of any of the Company or its affiliates at any time during the Employment
Period, (iii) induce or attempt to induce any customer, supplier, licensee, licensor, franchisee or
other business relation of any of the Company or its affiliates to cease doing business with the
Company or its affiliates or in any way interfere with the relationship between any such customer,
supplier, licensee or business relation and any of the Company or its affiliates or (iv) directly
or indirectly acquire or attempt to acquire an interest in any business relating to the business of
the Company or its affiliates and with which any of the Company or its affiliates has entertained
discussions or has requested and received information relating to the acquisition of such business
by the Company or its affiliates in the eighteen (18) month period immediately preceding the date
on which Employee ceases to be an employee of the Company; provided, however, that Employee
may own, directly or indirectly, solely as an investment, publicly traded securities of any entity
if Employee (a) is not a controlling person with respect to such entity and (b) does not, directly
or indirectly, own two percent or more of any class of the securities of such entity.




          (c) Enforcement. Employee acknowledges that the services to be rendered under the
provisions of this Agreement are of a unique nature and that it would be difficult or impossible to
replace such services. If, at the time of enforcement of Sections 8, 9 or
10, a court holds that the restrictions stated herein are unreasonable under circumstances
then existing, the parties hereto agree that the maximum duration, scope or geographical area
reasonable under such circumstances shall be substituted for the stated period, scope or area and
that the court shall be allowed to revise the restrictions contained herein to cover the maximum
duration, scope and area permitted by law. Because Employee’s services are unique and because
Employee has access to confidential information, the parties hereto agree that money damages would
be an inadequate remedy for any breach of this Agreement. Therefore, in the event a breach or
threatened breach of this Agreement, the Company or its successors or assigns may, in addition to
other rights and remedies existing in their favor, apply to any court of competent jurisdiction for
specific performance and/or injunctive or other relief in order to enforce, or prevent any
violations of, the provisions hereof (without posting a bond or other security). In addition, in
the event of a breach or violation by Employee of Sections 8, 9 or 10, the
time periods referenced in Sections 8, 9 or 10 shall be automatically
extended by the amount of time between the initial occurrence of the breach or violation and when
such breach or violation has been duly cured.




          (d) Additional Acknowledgments. Employee acknowledges that the provisions of
Section 10 are in consideration of: (i) employment with the Company and (ii) additional
good and valuable consideration as set forth in this Agreement. In addition, Employee agrees and
acknowledges that the restrictions contained in Sections 8, 9 and 10 do not
preclude Employee from earning a livelihood. In addition, Employee agrees and acknowledges that
the potential harm to the Company of the non-enforcement of Section 8, 9 and
10 outweighs




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any potential harm to Employee of its enforcement by injunction or otherwise. Employee
acknowledges that he has carefully read this Agreement and has given careful consideration to the
restraints imposed upon Employee by this Agreement, and is in full accord as to their necessity for
the reasonable and proper protection of confidential and proprietary information of the Company now
existing or to be developed in the future. Employee expressly acknowledges and agrees that each
and every restraint imposed by this Agreement is reasonable with respect to subject matter, time
period and geographical area.




          11. Employee’s Representations. Employee hereby represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by Employee do not and
shall not conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which Employee is a party or by which he is bound, (ii)
Employee is not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, (iii) upon the execution and delivery of
this Agreement by the Company, this Agreement shall be the valid and binding obligation of
Employee, enforceable in accordance with its terms. Employee hereby acknowledges and represents
that (x) he has consulted with independent legal counsel regarding his rights and obligations under
this Agreement, (y) that he fully understands the terms and conditions contained herein, and (z)
that the agreements herein are reasonable and necessary for the protection of the Company and the
Company and are an essential inducement to the Company to enter into this Agreement.




          12. Survival. Sections 5 through 23 shall survive and continue in
full force in accordance with their terms notwithstanding the expiration or termination of the
Employment Period.




          13. Notices. Any notice provided for in this Agreement shall be in writing and shall
be either personally delivered, sent by reputable overnight courier service or mailed by first
class mail, return receipt requested, to the recipient at the address below indicated:




          In the case of Employee, to him at:



James M. Hensler III

[                    ]

[                         ]



or at the last known address of Employee contained in the personnel records of the Company.




          In the case of the Company, to it at:



Horsehead Corporation

300 Frankfort Road

Monaca, PA 15061

Attn: Chief Financial Officer and General Counsel

Facsimile: (724) 774-4348




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with a copy to:



Kirkland & Ellis LLP

200 East Randolph Drive

Chicago, Illinois 60601

Attention: Douglas C. Gessner, P.C., James S. Rowe

Facsimile: (312) 861-2200



or such other address or to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party. Any notice under this Agreement shall be
deemed to have been given when so delivered, sent or mailed.




          14. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any action in any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.




          15. Complete Agreement. This Agreement and those documents expressly referred to
herein embody the complete agreement and understanding among the parties and supersede and preempt
any prior understandings, agreements or representations by or among the parties, written or oral,
which may have related to the subject matter hereof in any way. Employee agrees that all
employment and compensation agreements, arrangements and understandings (of any kind or nature)
between Employee and the Company, whether written and oral, shall terminate and be of no further
force or effect.




          16. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.




          17. Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement. Any counterpart may be executed by facsimile signature and such facsimile signature
shall be deemed an original.




          18. Successors and Assigns. Employee may not assign his rights or delegate his duties
or obligations hereunder without the prior written consent of the Company. The Company shall not
have the right to assign its rights or obligations under this Agreement without the prior written
consent of Employee; provided that this Agreement may be assigned by the Company without
the consent of Employee to another corporation under common control with the Company, or upon the
sale of all or substantially all of the assets, business and goodwill of the Company to another
company, or upon the merger or consolidation of the Company with another company, this Agreement
may be assigned by the Company to the purchaser of such assets and shall inure to the benefit of,
and be binding upon, both Employee and the company purchasing such assets, business and goodwill,
or surviving such merger or consolidation, as the




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case may be, in the same manner and to the same extent as though such other company were the
Company; provided that the successor to the Company shall expressly assume and agree to
perform this Agreement. Subject to the foregoing, this Agreement is intended to bind and inure to
the benefit of and be enforceable by Employee, the Company and their respective heirs, successors
and assigns.




          19. Choice of Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Pennsylvania, without giving effect to Pennsylvania’s rules of
conflicts of law, and regardless of the place or places of its physical execution and performance.




          20. Legal Fees. If any party to this Agreement seeks to enforce the terms and
provisions of this Agreement in court or before any other dispute resolution body, then the
prevailing party in such action shall be entitled to recover from the non-prevailing party, all
costs incurred in connection with such action, including without limitation reasonable fees,
expenses and cost incurred at the trial court, all appellate courts and during negations.




          21. Amendment and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of the Company (as approved by the Board) and Employee, and no
course of conduct or course of dealing or failure or delay by any party hereto in enforcing or
exercising any of the provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement or be deemed to be an implied waiver of any provision of this
Agreement.




          22. Cooperation With Regard to Litigation. Employee agrees to cooperate with the
Company during the Employment Period and thereafter (including following termination of Employee’s
employment for any reason) by making himself reasonably available to testify on behalf of the
Company or its affiliates, in any action, suit or proceeding, whether civil, criminal,
administrative, or investigative, and to assist the Company or any of its affiliates in any such
action, suit, or proceeding by providing information and meeting and consulting with its counsel
and representatives. Employee shall be fully reimbursed for any out-of-pocket expenses reasonably
incurred by Employee in the course of such cooperation.




          23. WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND
UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT
OF, CONNECTED WITH OR RELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED HEREBY, OR THE ACTIONS
OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.




* * * * *




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     IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the date
first written above.



	 	 	 	 	 	 	 
	 

	 	 	 	/s/ James M. Hensler III	 	 
	 	 	 	 	 
	 	 	James M. Hensler III	 	 
	 
	 	 	 	 	 	 
	 	 	HORSEHEAD CORPORATION
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Ali Alavi	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Ali Alavi	 	 
	 

	 	Title:
	 	Vice President—Corporate Administration, General Counsel and
Secretary	 	 






Employment Agreement Signature Page














 





Schedule A




     None.