Amended and Restated Employment Agreement between WHX Corporation, Handy & Harman, and Robert K. Hynes

 EXHIBIT 10.4 AMENDED AND RESTATED EMPLOYMENT AGREEMENT THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (hereinafter referred to as the "Agreement") made and entered into effective as of March 4, 2005, by and among WHX CORPORATION (hereinafter referred to as "WHX", and together with its subsidiaries, the "Company"), a corporation organized under the laws of the State of Delaware, with principal offices located at 110 East 59th Street, New York, New York 10022, HANDY & HARMAN (hereinafter referred to as "H&H"), a corporation organized under the laws of New York, with principal offices located at 555 Theodore Fremd Avenue, Rye, New York 10580 and ROBERT K. HYNES, an individual with an office address at 110 East 59th Street, New York, New York 10022. WHEREAS, you have been employed as the Vice President, Finance and then as the Chief Financial Officer of WHX pursuant to that certain employment agreement (the "Prior Agreement") dated as of July 1, 2001 between WHX and the Executive. WHEREAS, the parties desire to amend and restate the Prior Agreement pursuant to the terms described herein in consideration of, among other things, your agreement to perform additional services for the benefit of H&H and your extraordinary and continuing efforts in assisting the Company in developing and analyzing its strategic alternatives. 1. You shall hold the office of the Chief Financial Officer of WHX. Your employment with WHX shall continue through June 30, 2005, subject to earlier termination pursuant to the provisions set forth below, and shall automatically be extended for successive one-year terms unless either you or the Company shall advise the other upon not more than 60 days nor less than 30 days notice that such term shall not be renewed; provided that if the Agreement shall not be renewed by the Company, you shall be entitled to the benefits set forth in Section 8(b) hereof as if your employment had been terminated pursuant to Section 7(c) hereof. The parties desire to enter into this Agreement to supersede the Prior Agreement. The Prior Agreement is hereby terminated and all obligations under that agreement are terminated, except as are specifically otherwise provided in this Agreement. 2. You agree to use your best efforts to promote the interests of the Company and devote your full business time, attention and energies to the business and affairs of the Company. You agree to perform such services as are customary to your position and as shall from time to time be assigned to you by the Board of Directors of WHX, including without limitation, executive management services from time to time on behalf of H&H. You shall not during the term of this Agreement be engaged in any other business activity, whether or not such business activity is pursued for gain, profit or other pecuniary advantage; but this shall not be construed as preventing you from investing your personal assets in businesses that do not compete with the Company in such form or manner as will not require any services on your part in the operation of the affairs of the companies in which such investments are made and in which your participation is solely that of an investor; and except that you may purchase securities in any corporation whose securities are regularly traded, provided, that such  purchase shall not result in your owning beneficially at any time one percent (1%) or more of the equity securities of any corporation engaged in a business directly competitive with that of the Company. 3. Your annual base salary shall be no less than $250,000 less applicable federal, state and local tax deductions, payable in accordance with the Company's customary payroll practices. Any increases in your annual salary shall be in the sole discretion of WHX's Board of Directors. You shall also be entitled to such annual bonus, if any, as the Compensation Committee of WHX or the Board of Directors of WHX in its absolute discretion shall determine. 4. You shall be eligible to participate in such of the bonus and stock option plans or similar arrangements that may be offered from time to time by the Company, in accordance with the terms and provisions of such plans, in the sole discretion of WHX's Board of Directors. You shall also be eligible to continue to participate in the H&H Management Incentive Plan (the "Bonus Plan") and the H&H Long-Term Incentive Plan (the "Incentive Plan"). Specifically, you shall continue to be eligible and to participate in (a) the Bonus Plan in respect of the 2001 plan year (on a pro-rated basis), and (b) the Incentive Plan in respect of the 1999 through 2003 cycle, subject in each case to the attainment of performance goals established by the Board of Directors of Handy & Harman in its sole discretion. 5. (a) You shall be eligible to participate in the Company employee benefit plans and programs, in accordance with the terms and provisions of such plans, subject to the sole discretion of WHX's Board of Directors. Specifically, you shall be eligible to continue to participate in the Handy & Harman Supplemental Executive Retirement Plan and the Handy & Harman Executive Life Insurance and Post-Retirement Life Insurance Program, in each case in accordance with the terms and provisions of such plans. (b) The Company shall reimburse you for annual financial, estate and tax planning and tax preparation expenses up to a maximum of 3% of your annual base salary in effect on January 1 of each tax year. (c) You shall be provided with a Company car provided at the Company's expense (which shall be your current car provided by Handy & Harman), and such car may be replaced in the Company's sole discretion with a substantially equivalent model. (d) You shall be entitled to vacation with pay of four (4) weeks in each calendar year. This vacation time shall be pro-rated for partial employment in any calendar year. (e) You shall be entitled to health insurance coverage, if and to the extent provided to all other employees of the Company. 6. (a) The Company shall reimburse you for all reasonable business expenses incurred by you in accordance with the Company's policies on reimbursement for business expenses as then in effect. -2-  (b) You and your spouse shall continue to be entitled to receive post-retirement health insurance benefits from Handy & Harman under its Post-Retirement Medical Plan in effect for employees of Handy & Harman prior to 1992 on such terms and conditions in place for other employees covered by such plan. 7. (a) The Company may terminate your employment at any time, without prior notice, for any of the following reasons: (i) your engaging in conduct which is materially injurious to the Company, its affiliates, or any of its respective customer or supplier relationships, monetarily or otherwise; (ii) your engaging in any act of fraud, misappropriation or embezzlement or any act which would constitute a felony (other than minor traffic violations); or (iii) your material breach of this Agreement. (b) If, as a result of your incapacity due to physical or mental illness, you shall have been absent from the full-time performance of your duties hereunder for at least 120 days within any twelve (12) consecutive months, excluding vacation time actually used in accordance with the Company's policies thereon, your employment may be terminated by the Company, upon written notice in accordance with paragraph 8 hereof without further notice. (c) The Company, in its sole discretion, may terminate your employment at any time for any reason other than those stated in paragraphs 7(a) or 7(b) upon thirty (30) days prior written notice. 8. (a) If your employment is terminated by the Company pursuant to paragraph 7(a), you shall receive your base salary through the date of termination and the Company shall have no further obligations to you under this Agreement. (b) If your employment is terminated by the Company pursuant to paragraph 7(b) or 7(c) or as a result of your death, you or your personal representative, guardian, or the representative of your estate shall be entitled to the following severance and benefits: (i) The Company shall pay you a severance payment (the "Severance Payment") equal to one (1) year's full base salary at your highest rate in effect during the twelve (12) months preceding the date on which the Notice of Termination is given, plus any Bonus Plan compensation you have accrued; (ii) The Company shall pay you the Severance Payment no later than the thirtieth (30th) day following the date of termination. The Company shall pay the Severance Payment in one lump sum payment. (iii) The Company shall continue to provide you or your family with all of the benefits described in Section 5 hereof including, without limitation, accruals under existing pension plans, life insurance (other than in the event of termination of employment as a result of your death), medical and dental insurance benefits, financial planning and a company-owned automobile, for twelve (12) months following the date of termination. In addition, (x) the -3-  Company shall assign to you all life insurance policies (and the their cash surrender value) taken out on your behalf while you were employed at Handy and Harman and (y) you shall be entitled to receive any payments under the Handy and Harman Supplemental Employment Retirement Plan to which you otherwise would be entitled as and when such payments are required to be made. (iv) During the period you are receiving any payments or benefits under paragraph 8(b), you agree to promptly notify the Company upon your acceptance of any other employment and upon your eligibility for any medical benefits, insurance, financial planning or use of a company-owned vehicle by your new employer, you shall no longer be eligible to participate in the corresponding aspects of the Company's benefit plans and arrangements. Upon the payment to you of the benefits under Section 8(b), Sections 9 and 10 shall terminate and you shall not be entitled to any further payments under such terminated sections. 9. You shall be entitled to terminate your employment for "Good Reason", which shall mean the occurrence of one of the following circumstances: (a) a reduction in your annual base salary as in effect on the date of such change; (b) the Company causes the relocation of the office in which you are located prior to the change to a location more than fifty miles from New York, New York, except for required travel on the business of the Company to an extent substantially consistent with your present business travel obligations; (c) breach of this Agreement by the Company; or (d) failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform this Agreement. 10. Upon the occurrence of any of the events set forth in Section 9, you shall for Good Reason upon notice pursuant to Section 17 hereof to the Company, if such occurrence is not cured within 30 days of receipt of such notice, be entitled to the following benefits: (a) The Company shall pay you a severance payment (the "Severance Payment") equal to one (1) year's full base salary at your highest rate in effect during the twelve (12) months preceding the date on which the Notice of Termination is given plus any Bonus Plan compensation you have accrued; (b) For a twelve (12) month period after termination of your employment, the Company shall arrange to provide you with life, medical and dental insurance benefits, financial planning and a company-owned automobile substantially similar to those which you are receiving or entitled to receive immediately prior to the Notice of Termination, unless you are eligible to receive such benefits from a subsequent employer; -4-  (c) The Company shall pay you the Severance Payment no later than the thirtieth (30th) day following the date of termination. The Company shall pay the Severance Payment in one lump sum payment. (d) Upon the payment to you of the benefits under Sections 10(a), (b) and (c), Sections 7 and 8 shall terminate and you shall not be entitled to any further payments under such terminated sections. 11. Your continued employment shall not constitute consent to, or as a waiver of rights with respect to, any circumstance constituting Good Reason hereunder for a period of sixty (60) days following the occurrence of such event, and thereafter such circumstance shall be deemed waived as an event giving rise to a termination pursuant to Section 9. 12. Any termination of your employment by the Company, or by you shall be communicated by written "Notice of Termination" to the other party hereto in accordance with Section 17 hereof. For purposes of this Agreement, a Notice of Termination shall mean a notice indicating the specific termination provision in this Agreement relied upon and setting forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of your employment under the provision so indicated. Further, you agree that upon termination that you will resign effective as of the date of termination from any and all directorships you may hold in the Company. 13. "Date of Termination" shall mean (30) days after the date specified in the Notice of Termination. 14. (a) You agree that, at all times during and after your employment with the Company, you shall hold and protect in strict confidence and shall not (except as required in the furtherance of the Company's business or with the Company's prior written consent) use or disclose for any purpose to any person who is not then a Company employee any of the Company's confidential or proprietary information, and you shall not cause or assist any other person to use, publish or disclose any of such information except, however, such information as shall have become generally available to the public other than by your action, cause or fault. (b) All papers, books and records of every kind and description relating to the business and affairs of the Company or its affiliates, whether or not prepared by you, shall be the sole and exclusive property of the Company, and you shall surrender them to the Company at any time upon request by the Chairman or the Board or any authorized officer of the Company. (c) The provisions of subsections 14(a), (b) and (c) will survive the expiration or earlier termination of the term of this Agreement and shall extend for a period of thirty-six (36) months thereafter. (d) You also agree that, for a period of 18 months following the termination of your employment, you will not (i) offer, perform or attempt to perform services for any other person, firm or corporation if any of those -5-  services would use or disclose or cause disclosure of any confidential or proprietary information, (ii) cause, assist or encourage any solicitation of a customer of the Company for a sale in competition with the Company, and (iii) cause, assist or encourage any recruitment of any employee of the Company to become employed with another, or take any other action not consistent with good faith employment with the Company. (e) Notwithstanding any other provision of this Agreement, if there is a breach or threatened breach of the provisions of this Section 14 of this Agreement, the Company shall be entitled to an injunction restraining you from such breach. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedies for such breach or threatened breach. 15. Subject to Section 14(e), any dispute or controversy between the Company and you, whether arising out of or relating to this Agreement, the breach of this Agreement, or otherwise, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Rules then in effect and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Such arbitration shall take place in the New York City metropolitan area. The cost of any arbitration proceeding hereunder shall be borne equally by the Company and you. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, the issuance of an injunction. However, either party may, without inconsistency with this arbitration provision, apply to any court having jurisdiction over such dispute or controversy and seek interim provisional, injunctive or other equitable relief until the arbitration award is rendered or the controversy is otherwise resolved. In the event that it shall be necessary or desirable for you to retain legal counsel and/or incur other costs and expenses in connection with this arbitration provision, and provided that you substantially prevail in the enforcement of such rights, the Company shall pay (or you shall be entitled to recover from the Company, as the case may be) your reasonable attorneys' fees and costs and expenses in connection with any application under this arbitration provision, including the enforcement of any arbitration award, up to $25,000 in the aggregate. Except as necessary in court proceedings to enforce this arbitration provision or an award rendered hereunder, or to obtain interim relief, neither a party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the Company. 16. (a) WHX and H&H shall be jointly and severally liable for all amounts to be paid to you hereunder. (b) The Company agrees to maintain in full force and effect all director and officer liability insurance policies presently in effect pursuant to their terms, and to not cancel any such policy unless a new policy is substituted that has substantially equivalent coverage, unless the cost to maintain such insurance, in the reasonable discretion of the Company, becomes excessive. (c) If you should incur any expenses in connection with the (i) enforcement of any of your rights hereunder, including but not limited to, any amounts due to you hereunder, or (ii) defense of any claims, whether by legal proceedings or otherwise, for any amounts paid by the Company, directly or -6-  indirectly, to you whether pursuant to this Agreement or otherwise, you shall be entitled to receive pursuant to clause (i) or (ii) above, as and when requested from time to time, whether or not there has been an adjustment of any claims hereunder, in addition to the amounts payable hereunder, all reasonable costs of defense or collection, including attorneys' fees and disbursements, court costs, and any other such expenses which might be incurred. (d) The Company hereby agrees to indemnify and hold you harmless to the fullest extent permitted by the Certificate of Incorporation and By-laws, as currently in effect, and in accordance with Delaware General Corporation Law, as amended from time to time (the "DGCL"), or any other applicable law as may be amended from time to time, against any and all amounts which you are or become obligated to pay because of any charge, claim or claims, whether civil or criminal, made against you because of any act or omission or neglect or breach of duty, including any actual or alleged error or misstatement or misleading statement or other act done or wrongfully attempted, which you commit or suffer while acting in your capacity as an officer or director of the Company or an affiliate thereof and because of you being such an officer or director. The payments which the Company will be obligated to make hereunder shall include but shall not be limited to all expenses (including attorney's fees), damages, judgments, fines, settlements and costs, cost of investigation and costs of defense of actual or threatened legal actions, claims or judicial administrative or other proceedings and appeals therefrom and costs of attachment or similar bonds and shall be payable within 30 days after you have given the Company a written claim for such funds; provided, however, that the Company shall not be obligated to pay fines or other obligations or fees imposed by law or otherwise which is prohibited by applicable law from paying as indemnity. To the full extent so permitted, the foregoing shall apply to actions by or in the right of the Company and require the Company to pay expenses, including bail bonds, if any, in advance of final disposition as set forth above. (e) The Company shall not be liable under this Agreement to make any payment in connection with any claim under Section 16(d) above: (i) for which payment is actually made to you under a valid and collectable Company insurance policy, which premiums are paid by the Company or any of its affiliates, except in respect of any deductible and excess beyond the amount of payment under such insurance; (ii) for which you are indemnified by the Company otherwise than pursuant to this Agreement, provided such amount has previously been paid to you; (iii) based upon or attributable to you gaining in fact any personal profit or advantage to which you were legally entitled; (iv) for an accounting of profits in fact made from your purchase or sale of securities of the Company within the meaning of applicable law; -7-  (v) brought about or contributed to by your dishonesty seeking payment hereunder; provided, however, notwithstanding the foregoing, you shall be protected under this Agreement as to any claims upon which suit may be brought against you by reason of any alleged dishonesty on your part, unless a judgment or other final and nonappealable adjudication thereof adverse to you shall establish that you committed acts of active and deliberate dishonesty with actual dishonest purpose and intent, which acts were material and an essential element to the cause of actions so adjudicated; and (vi) by you acting as a plaintiff suing other directors or officers of the Company or its affiliates. 17. Any notices required by this Agreement shall be in writing and shall be deemed to have been given when delivered by hand, sent by facsimile (so long as an original is mailed within 24 hours of such facsimile transmission), mailed by United States certified mail, return receipt requested, postage prepaid, or sent by nationally-recognized overnight mail service, as follows: If to you: Mr. Robert K. Hynes At the address provided to the Company in accordance with this paragraph If to the Company: WHX Corporation 110 East 59th Street, 30th Floor New York, New York 10022 Attention: Corporate Secretary and or to such other address as the parties may furnish to the other in writing in accordance with this paragraph. Notices of change of address shall only be effective upon receipt. 18. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws principles. 19. This Agreement sets forth the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, arrangements and understandings among the Company and you with respect to such subject matter. This Agreement may be modified only by a writing signed by you and the Company. If any provision of this Agreement shall be held to be void or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. This Agreement shall inure to the benefit of and be binding upon the Company's successors and assigns. -8-  IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. WHX CORPORATION By: /s/ Neale X. Trangucci -------------------------------------- Name: Neale X. Trangucci Title: Chief Executive Officer HANDY & HARMAN By: /s/ Daniel Murphy ------------------------------------ Name: Daniel Murphy Title: President Agreed to this 4th day of March, 2005 /s/ Robert K. Hynes - --------------------------------- Robert K. Hynes -9-