EXHIBIT 10.38
AMENDMENT NO. 2 TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amendment No. 2,
dated as of December 9, 2008 (this “ Amendment
”), is to the Amended and Restated Employment Agreement,
dated as of April 25, 2007, between RathGibson, Inc. (the “
Company ”) and its affiliated companies, RGCH Holdings
Corp. and RG Tube Holdings LLC (as assignee of RGCH Holdings LLC),
and Jeffrey J. Nelb (the “ Executive ”)
(together, the “ Parties ”), as amended by
Amendment No. 1 to Amended and Restated Employment Agreement dated
as of June 15, 2007 (the “ Employment Agreement
”). Any capitalized terms used but not defined in this
Amendment have the respective meanings set forth in the Employment
Agreement.
Recitals
:
A.
Under Section
9.4 of the Employment Agreement, the Employment Agreement may
be amended upon the execution of a written instrument by the
Parties.
B.
The Parties would like
to amend the Employment Agreement to comply with Section 409A of
the Internal Revenue Code.
Agreement
:
In consideration of the
foregoing and the mutual promises contained herein and in the
Employment Agreement, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1.
Effective Time of
Amendment .
This Amendment is made pursuant to Section 9.4 of the
Employment Agreement, with retroactive effect to April 25, 2007
(except as otherwise provided), and will become effective when it
has been executed and delivered by the Parties.
2.
Amendments .
(a)
Section
4.2 is hereby
amended, effective June 15, 2007, to provide in its entirety as
follows:
“ Bonus .
The Executive shall be eligible to receive an annual bonus of
up to 200% of Base Salary (“Bonus”) under a plan
established by the Company or the Board (or a Committee thereof).
The Executive’s target bonus shall be 100% of Base
Salary (the “Target Bonus”). Bonuses shall be
paid at the same time as paid to other executives of the Company,
but in no event later than the date that is two and one-half
(2½) months after the end of the fiscal year to which such
Bonus relates. All Bonus amounts shall be reduced for
applicable federal, state and local taxes.”
(b)
Section
6.1 is hereby
amended by adding the phrase “, in each case, as soon as
reasonably practicable (but in any event within fifteen (15) days)
after such termination of employment” immediately before the
colon at the end thereof.
(c)
The first sentence of
Section 6.2 is hereby amended as follows:
by replacing the word
“upon” with the phrase “subject to”;
and
by adding the phrase
“, within thirty (30) days following the date of such
termination,” immediately before the colon at the end
thereof.
(d)
Each of Sections
6.2(a) and 6.2(b) are hereby amended by adding the phrase
“as soon as reasonably practicable (but in any event within
fifteen (15) days) after timely execution and delivery by the
Executive to the Company of the release” immediately before
the semicolon in each such section.
(e)
Section
6.2(c) is
hereby amended to provide in its entirety as follows:
“(c) Base
Salary for twelve (12) months, payable in equal installments in
accordance with the Company’s customary payroll
practices, with
such twelve (12) month
period to commence: (i) on the business day following the date of
termination, if the Executive executes and delivers the release to
the Company upon termination; or (ii) if the Executive does not
execute and deliver the release to the Company upon termination, as
soon as reasonably practicable (but in any event within fifteen
(15) days) after timely execution and delivery by the Executive to
the Company of the release, each of which shall be treated as
a separate payment for purposes of Section 409A of the Internal
Revenue Code (“Section 409A”); and”
(f)
The first sentence of
Section 6.3 is hereby amended as follows:
by replacing the word
“upon” with the phrase “subject to”;
and
by adding the phrase
“, within thirty (30) days following the date of such
termination,” immediately before the colon at the end
thereof.
(g)
Each of Sections
6.3(a) and 6.3(b) are hereby amended by adding the phrase
“as soon as reasonably practicable (but in any event within
fifteen (15) days) after timely execution and delivery by the
Executive to the Company of the release” immediately before
the semicolon in each such section.
