HORSEHEAD CORPORATION First Amendment to Employment Agreement Robert Scherich Dated: December 24, 2008
Exhibit 10.23
HORSEHEAD CORPORATION
First Amendment to Employment Agreement
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Dated: December 24, 2008
WHEREAS, Horsehead Corporation (the “Company”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(“Employee”), entered into an employment agreement on November 30, 2006 (the
“Agreement”); and
WHEREAS, the Company and Employee now wish to amend the Agreement to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the treasury
regulations and other official guidance promulgated thereunder in accordance with the provisions of
Section 21 of the Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein and
of other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree to amend the Agreement as set forth herein.
FIRST: The Agreement is hereby amended by adding a new Section 24 to read in full as
follows:
“24. Code Section 409A Compliance.
(a) The intent of the parties is that payments and benefits under this Agreement comply
with Internal Revenue Code Section 409A and the regulations and guidance promulgated
thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum
extent permitted, this Agreement shall be interpreted to be in compliance therewith. To the
extent that any provision hereof is modified in order to comply with Code Section 409A, such
modification shall be made in good faith and shall, to the maximum extent reasonably
possible, maintain the original intent and economic benefit to Employee and the Company of
the applicable provision without violating the provisions of Code Section 409A. In no event
whatsoever shall the Company be liable for any additional tax, interest or penalty that may
be imposed on Employee by Code Section 409A or damages for failing to comply with Code
Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of
any provision of this Agreement providing for the payment of any amounts or benefits upon or
following a termination of employment unless such termination is also a “separation from
service” within the meaning of Code Section 409A and, for purposes of any such provision of
this Agreement, references to a “termination,” “termination of employment” or like terms
shall mean “separation from service.”
(c) Notwithstanding any other payment schedule provided herein to the contrary, if
Employee is deemed on the date of termination to be a “specified employee”
within the
meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment that
is considered “nonqualified deferred compensation” under Code Section 409A payable on
account of a “separation from service,” such payment shall be made on the date which is the
earlier of (i) the expiration of the six (6)-month period measured from the date of such
“separation from service” of Employee, and (ii) the date of Employee’s death to the extent
required under Code Section 409A. Upon the expiration of the foregoing delay period, all
payments delayed pursuant to this Section (whether they would have otherwise been payable in
a single sum or in installments in the absence of such delay) shall be paid to Employee in a
lump-sum, and all remaining payments due under this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them herein.
(d) To the extent that severance payments pursuant to this Agreement are conditioned
upon the execution and delivery by Employee of a release of claims, Employee shall forfeit
all rights to such payments unless such release is signed and delivered (and no longer
subject to revocation, if applicable) within sixty (60) days following the date of
Employee’s termination of employment. If the foregoing release is executed and delivered
and no longer subject to revocation as provided in the preceding sentence, then the
following shall apply:
(i) To the extent that any such severance payment to be provided is not
“nonqualified deferred compensation” for purposes of Code Section 409A, then such
payment shall commence upon the first scheduled payment date immediately following
the date that the release is executed, delivered and no longer subject to revocation
(the “Release Effective Date”). The first such cash payment shall include
payment of all amounts that otherwise would have been due prior to the Release
Effective Date under the terms of this Agreement applied as though such payments
commenced immediately upon Employee’s termination of employment, and any payments
made thereafter shall continue as provided herein.
(ii) To the extent that any such cash payment to be provided is “nonqualified
deferred compensation” for purposes of Code Section 409A, then such payment shall be
made or commence upon the sixtieth (60th) day following Employee’s termination of
employment. The first such cash payment shall include payment of all amounts that
otherwise would have been due prior thereto under the terms of this Agreement had
such payments commenced immediately upon Employee’s termination of employment, and
any payments made thereafter shall continue as provided herein.
(e) For purposes of compliance with Code Section 409A, (i) all expenses or other
reimbursements hereunder shall be made on or prior to the last day of the taxable year
following the taxable year in which such expenses were incurred by Employee, (ii) any right
to reimbursement or in-kind benefits is not subject to liquidation or exchange for another
benefit, and (iii) no such reimbursement, expenses eligible for reimbursement,
or in-kind benefits provided in any taxable year shall in any way affect the expenses
eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
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(f) For purposes of Code Section 409A, Employee’s right to receive any installment
payments pursuant to this Agreement shall be treated as a right to receive a series of
separate and distinct payments. Whenever a payment under this Agreement specifies a payment
period with reference to a number of days, the actual date of payment within the specified
period shall be within the sole discretion of the Company.
(g) Notwithstanding any other provision of this Agreement to the contrary, in no event
shall any payment under this Agreement that constitutes “nonqualified deferred compensation”
for purposes of Code Section 409A be subject to offset by any other amount unless otherwise
permitted by Code Section 409A.
(h) Unless this Agreement provides a specified and objectively determinable payment
schedule to the contrary, to the extent that any payment of base salary or other
compensation is to be paid for a specified continuing period of time beyond the date of
Employee’s termination of employment in accordance with the Company’s payroll practices (or
other similar term), the payments of such base salary or other compensation shall be made
upon such schedule as in effect upon the date of termination, but no less frequently than
monthly.”
SECOND: Except as specifically modified herein, the Agreement shall remain in full
force and effect in accordance with all of the terms and conditions thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this amendment to the Agreement as of the
date first written above.
| HORSEHEAD CORPORATION | ||||||
| By: Name: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||||
| Title: | President and Chief Executive Officer | |||||
| EMPLOYEE | ||||||
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||||
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