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EXHIBIT 10.16
ALUMAX INC.
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EMPLOYMENT AGREEMENT
FOR
X. XXXXX BORN
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As Amended and Restated
as of December 5, 1996
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ALUMAX INC.
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Employment Agreement
for
X. Xxxxx Born
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Page
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1. Employment............................................................. 1
2. Period of Employment................................................... 1
(a) Duration Under Normal Circumstances........................... 1
(b) Termination Events............................................ 1
3. Duties During the Period of Employment................................. 2
4. Location of Employment................................................. 2
5. Current Cash Compensation.............................................. 2
6. Stock Options ......................................................... 2
(a) Grant ..................................................... 2
(b) Exercise Price................................................ 3
(c) Vesting....................................................... 3
(d) Term ..................................................... 3
(e) Exercise...................................................... 3
(f) Registration.................................................. 4
(g) Non-Transferability........................................... 4
7. Additional Stock Options............................................... 4
(a) Grant ..................................................... 4
(b) Exercise Price................................................ 4
(c) Vesting....................................................... 4
(d) Term ..................................................... 4
(e) Exercise...................................................... 5
(f) Registration.................................................. 5
(g) Non-Transferability........................................... 5
8. Stock Units ..................................................... 5
(a) Grant ..................................................... 5
(b) Vesting....................................................... 5
(c) Deferral of Payment........................................... 6
(d) Grantor Trust................................................. 6
(e) Dividends..................................................... 6
(f) Change in Control............................................. 6
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ALUMAX INC.
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Employment Agreement
for
X. Xxxxx Born
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Page
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9. Effect of Change in Common Stock....................................... 6
10. Employee Benefits...................................................... 7
(a) Vacation and Sick Leave....................................... 7
(b) Regular Reimbursed Business Expenses.......................... 7
(c) Employee Benefit Plans or Arrangements........................ 7
(d) Employer's Executive Compensation Plans....................... 7
(e) Financial and Tax Advice...................................... 7
11. Termination............................................................ 8
(a) Death or Retirement............................................. 8
(b) Disability...................................................... 9
(c) Voluntary Termination by Employee without Good Reason........... 10
(d) Voluntary Termination by Employee with Good Reason,
or by Employer without Cause.................................... 10
(e) Termination by Employer with Cause ............................. 12
(f) Date of Payment................................................. 12
12. Definitions............................................................ 12
13. Excise Tax Gross-up.................................................... 17
14. Non-Competition and Non-Disclosure; Employee Cooperation............... 19
15. Governing Law; Disputes; Arbitration................................... 20
16. Notices................................................................ 20
17. Withholding............................................................ 21
18. Mitigation............................................................. 21
19. Successors; Binding Agreement.......................................... 21
20. Pension Credit and Additional Pension Credit........................... 21
21. Miscellaneous.......................................................... 22
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EMPLOYMENT AGREEMENT
AGREEMENT, effective as of November 15, 1993, by and between Alumax
Inc., a Delaware corporation ("Employer"), and X. Xxxxx Born, an individual
("Employee"), as amended and restated as of December 5, 1996.
WHEREAS, Employer and Employee entered into an employment agreement
executed and effective as of November 15, 1993 (the "Agreement"); and
WHEREAS, Employer and Employee previously amended the Employment
Agreement by an Agreement dated March 11, 1994; and
WHEREAS, Employer and Employee wish to further amend the Employment
Agreement and in connection therewith to restate the Employment Agreement in its
entirety; and
WHEREAS, such amendment and restatement of the Employment Agreement was
approved by the Human Resources and Compensation Committee of the Board of
Directors of Employer at a meeting held on December 5, 1996.
IN CONSIDERATION OF the mutual covenants herein contained, and other
good and valuable consideration, the parties hereto agree as follows:
1. Employment. Employer hereby agrees to employ Employee, and
Employee agrees to serve, as Chairman of the Board of Directors and Chief
Executive Officer of Employer, during the Period of Employment as defined in
Section 2.
2. Period of Employment
(a) Duration Under Normal Circumstances. The "Period of
Employment" shall be the six-year period commencing November 15, 1993
(the "Commencement Date"), and ending on December 31, 1999.
(b) Termination Events. Notwithstanding anything in this
Section 2 to the contrary, the Period of Employment shall terminate
upon the earliest to occur of the following:
(i) the retirement of Employee upon or after
reaching age 65;
(ii) the retirement of Employee, with the consent
of Employer, prior to reaching age 65;
(iii) the Disability (as defined in Section 12) of
Employee and the expiration of the 30-day period referred to in the
definition of Disability without the actions referred to therein being
taken by Employee;
(iv) the death of Employee;
(v) the 90th day after service of notice by
Employee to Employer, in accordance with the provisions of Section 16,
that Employee elects to terminate the Period of Employment (a
"voluntary termination by Employee"); and
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(vi) the 90th day after service of notice by
Employer to Employee, in accordance with the provisions of Section 16,
that Employer elects to terminate the Period of Employment (a
"voluntary termination by Employer"), other than a termination by
Employer with Cause (in which event the Period of Employment shall
promptly terminate upon service of such notice).
3. Duties During the Period of Employment. Employee shall devote
his full business time, attention and best efforts to the affairs of Employer
and its subsidiaries during the Period of Employment and shall have such duties,
responsibilities and authority as shall be consistent with the position and
title of Chairman of the Board of Directors and Chief Executive Officer.
Employee may engage in other activities, such as activities involving
charitable, educational, religious and similar types of organizations (all of
which are deemed to benefit Employer), speaking engagements, and similar type
activities, and may serve on the board of directors of other corporations
approved by the Board of Directors of Employer, in each case to the extent that
such other activities do not materially detract from or limit the performance of
his duties under this Agreement, or inhibit or conflict in any material way with
the business of Employer and its subsidiaries. In addition, until November 15,
1996, Employee may serve as Co-Chairman of Cyprus AMAX Minerals Company on such
terms and conditions as the Board of Directors of Cyprus AMAX Minerals Company
and the Board of Directors of Employer may specify and may thereafter serve on
the Board of Directors of Cyprus AMAX Minerals Company.
4. Location of Employment.
(a) During the Period of Employment, Employer may only
require Employee to be based in or within 45 miles of Norcross,
Georgia, except that Employer may require Employee to be based more
than 45 miles from Norcross, Georgia if the relocation is to a
principal executive office of Employer.
(b) The Employer shall pay to, or reimburse Employee for,
on an after-tax basis, all reasonable expenses of relocation incurred
and substantiated by Employee in connection with the Employee's
relocation from his current principal residence to Georgia as well as
any subsequent principal residence relocation. In addition, the
Employer shall indemnify Employee, on an after-tax basis, against any
loss actually realized on the sale of Employee's principal residence
within twelve months of such relocation if Employee has reasonably
cooperated with Employer in connection with such sale.
5. Current Cash Compensation. Employer shall pay to Employee
during the Period of Employment a base annual salary of not less than $750,000
until January 1, 1996, and thereafter not less than $800,000 (or such greater
amount as may have been approved by the Board of Directors or the Committee in
its sole discretion), payable in substantially equal monthly installments during
each calendar year, or portion thereof, of the Period of Employment; provided,
however, that Employer agrees to review such base annual salary annually and in
light of such review may, in the sole discretion of the Board of Directors of
Employer or the Committee, increase such salary, taking into account such
factors as it deems pertinent.
6. Stock Options
(a) Grant. Immediately following the Commencement Date
and the end of the 120-Day Period (as defined in Section 12), Employer
shall grant to Employee non-qualified
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stock options (the "Options") to acquire shares of common stock, par
value of $.01 per share, of Employer ("Common Stock"), in an aggregate
amount equal to 625,000 shares multiplied by a fraction, the numerator
of which is 20.125, and the denominator of which is the 120-Day Average
Price (as defined in Section 12). Employer and Employee agree that the
number of shares of Common Stock subject to the Options and any other
options granted or to be granted by Employer to Employee under the
Alumax Inc. 1993 Long Term Incentive Plan during any period of five
consecutive years following the Commencement Date shall not exceed
1,500,000 shares.
(b) Exercise Price. The exercise per share price of each
of the Options (the "Exercise Price") shall be equal to the 120-Day
Average Price.
(c) Vesting. The Options shall vest at the rate of 20%
per year on each of the first five anniversary dates of the
Commencement Date; provided, however, that (i) Options that have not
previously vested shall vest immediately, and all restrictions and
risks of forfeiture shall lapse, upon (A) the death or Disability (as
defined in Section 12) of Employee, (B) Employee's retirement on or
after age 65, (C) Employee's retirement on or after age 62 but before
age 65, if Employer's Board of Directors, in its sole discretion and
without taking into account any vote of Employee, approves the
immediate vesting of such Options upon such retirement, (D) termination
of Employee's employment by Employer without Cause (as defined in
Section 12), or by Employee with Good Reason (as defined in Section
12), or (E) a Change in Control (as defined in Section 12), and (ii)
Options that have not previously vested shall not vest, and shall be
immediately forfeited by Employee, upon (X) Employee's retirement
before age 65 unless Employer's Board of Directors, in its sole
discretion and without taking into account any vote of Employee,
approves the immediate (or future) vesting of such Options upon any
such retirement on or after age 62, or (Y) termination of Employee's
employment by Employer with Cause or by Employee other than with Good
Reason.
(d) Term. Vested Options may be exercised only within
the first ten years after the date of grant.
(e) Exercise. Except as described below, an Option that
is vested may be exercised only by:
(i) written notice of intent to exercise the Option
and (ii) payment or deemed payment of the Exercise Price to
Employer (contemporaneously with delivery of such notice) in
cash or Common Stock of equivalent Fair Market Value. In its
sole discretion the Committee may permit the Exercise Price to
be paid in the form of awards issued under the Employer's
compensation plans, or other property (including notes or
other contractual obligations of the Employee to make payment
on a deferred basis, such as through "cashless exercise"
arrangements, to the extent permitted by applicable law).
Common Stock utilized in full or partial payment of the
Exercise Price shall be valued at its Fair Market Value (as
defined in Section 12) on the date of exercise. In the event
of a Change in Control, the Employee shall be entitled to
elect, during the 60-day period immediately following such
Change in Control, in lieu of acquiring the shares of Common
Stock covered by the Options, to receive, and the Employer
shall be obligated to pay, the Change in Control Settlement
Value (as defined in Section 8(c) of the Alumax Inc. 1993
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Long Term Incentive Plan) with respect to shares of Common
Stock up to the number of shares covered by the Options, which
amount shall be paid in cash.
(f) Registration. Employee shall sell shares of Common
Stock acquired upon the exercise of Options only pursuant to an
effective registration statement covering such sale or to an exemption
from registration under the Securities Act of 1933, as amended.
(g) Non-Transferability. The Options may not be sold,
pledged, assigned, hypothecated, transferred or disposed of in any
manner other than by will or by the laws of descent and distribution.
An Option may be exercised, during the lifetime of Employee, only by
Employee or his guardian or legal representative.
7. Additional Stock Options
(a) Grant. In connection with the amendment and
restatement of this Agreement and the related extension of the Period
of Employment, Employer shall grant to Employee non-qualified stock
options (the "Additional Options") to acquire shares of Common Stock in
an aggregate amount equal to 687,800 shares. Employer and Employee
agree that the number of shares of Common Stock subject to the
Additional Options and any other options granted or to be granted by
Employer to Employee under the Alumax Inc. 1993 Long Term Incentive
Plan during any period of five consecutive years shall not exceed
900,000 shares.
(b) Exercise Price. The exercise price per share of each
of the Additional Options (the "Exercise Price") shall be (i) with
respect to 229,267 shares, the closing sale price of the Common Stock
reported on the Composite Tape for securities listed on the New York
Stock Exchange in The Wall Street Journal for December 5, 1996, or if
no Common Stock was traded on that date, on the next preceding day on
which there was such a trade (the "Basic Exercise Price"); (ii) with
respect to 229,267 shares, the Basic Exercise Price plus $4.00; and
(iii) with respect to the remaining 229,266 shares, the Basic Exercise
Price plus $8.00.
(c) Vesting. The Additional Options shall vest as
follows: (i) the 229,267 shares exercisable at the Basic Exercise Price
on November 15, 1997; the 229,267 shares exercisable at the Basic
Exercise Price plus $4.00 on November 15, 1998; and the remaining
229,266 shares on November 15, 1999; provided, however, that (i)
Additional Options that have not previously vested shall vest
immediately, and all restrictions and risks of forfeiture shall lapse,
upon (A) the death or Disability (as defined in Section 12) of
Employee, (B) termination of Employee's employment by Employer without
Cause (as defined in Section 12), or by Employee with Good Reason (as
defined in Section 12), or (C) a Change in Control (as defined in
Section 12), and (ii) Additional Options that have not previously
vested shall not vest, and shall be immediately forfeited by Employee,
upon (X) Employee's retirement before December 31, 1999 unless
Employer's Board of Directors, in its sole discretion and without
taking into account any vote of Employee, approves the immediate (or
future) vesting of such Additional Options upon any such retirement, or
(Y) termination of Employee's employment by Employer with Cause or by
Employee other than with Good Reason.
(d) Term. Vested Additional Options may be exercised
only within the first six years after the date of grant.
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(e) Exercise. Except as described below, an Additional
Option that is vested may be exercised only by:
(i) written notice of intent to exercise the
Additional Option and (ii) payment or deemed payment of the
Exercise Price to Employer (contemporaneously with delivery of
such notice) in cash or Common Stock of equivalent Fair Market
Value. In its sole discretion the Committee may permit the
Exercise Price to be paid in the form of awards issued under
the Employer's compensation plans, or other property
(including notes or other contractual obligations of the
Employee to make payment on a deferred basis, such as through
"cashless exercise" arrangements, to the extent permitted by
applicable law). Common Stock utilized in full or partial
payment of the Exercise Price shall be valued at its Fair
Market Value (as defined in Section 12) on the date of
exercise. In the event of a Change in Control, the Employee
shall be entitled to elect, during the 60-day period
immediately following such Change in Control, in lieu of
acquiring the shares of Common Stock covered by the Additional
Options, to receive, and the Employer shall be obligated to
pay, the Change in Control Settlement Value (as defined in
Section 8(c) of the Alumax Inc. 1993 Long Term Incentive Plan)
with respect to shares of Common Stock up to the number of
shares covered by the Additional Options, which amount shall
be paid in cash.
(f) Registration. Employee shall sell shares of Common
Stock acquired upon the exercise of Additional Options only pursuant to
an effective registration statement covering such sale or to an
exemption from registration under the Securities Act of 1933, as
amended.
(g) Non-Transferability. Except as permitted under the
Alumax Inc. Long Term Incentive Plan, the Additional Options may not be
sold, pledged, assigned, hypothecated, transferred or disposed of in
any manner other than by will or by the laws of descent and
distribution and may only be exercised, during the lifetime of
Employee, only by Employee or his guardian or legal representative.
8. Stock Units
(a) Grant. Immediately following the Commencement Date
and the end of the 120-Day Period, Employer shall grant to Employee
units of compensation (the "Units") each of which shall represent the
right to receive compensation paid in the form of one share of Common
Stock and the aggregate number of which shall equal $2,684,000 divided
by the 120-Day Average Price.
(b) Vesting. The Units shall vest at the rate of 20% per
year on each of the first five anniversary dates of the Commencement
Date; provided, however, that (i) Units that have not previously vested
shall vest immediately, and all restrictions and risks of forfeiture
shall lapse, upon: (A) the death or Disability of Employee; (B)
Employee's retirement on or after age 65;(C) Employee's retirement on
or after age 62 but before age 65 if Employer's Board of Directors, in
its sole discretion and without taking into account any vote of
Employee, approves the immediate vesting of such Units upon such
retirement; (D) termination of Employee's employment by Employer
without Cause or by Employee with Good Reason; or (E) a Change in
Control, and (ii) Units that have not previously vested shall not vest,
and shall be immediately forfeited by Employee, upon: (X) Employee's
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retirement before age 65 unless Employer's Board of Directors, in its
sole discretion and without taking into account any vote of Employee,
approves the immediate (or future) vesting of such Units upon any such
retirement on or after age 62; or (Y) termination of Employee's
employment by Employer with Cause or by Employee other than with Good
Reason.
(c) Deferral of Payment. By the end of each calendar year
immediately preceding the calendar year in which any portion of the
Units are scheduled to vest in accordance with Section 8(b) above,
Employee shall file with Employer a written election form in which
Employee shall elect the date or dates on which the vested proceeds
(including shares of Common Stock) of the Grantor Trust established in
accordance with Section 8(d) below shall be paid out to Employee.
(d) Grantor Trust. Employer shall establish a trust (the
"Trust") pursuant to a grantor trust agreement substantially in the
same form as Annex A hereto (the "Trust Agreement"). The purpose of the
Trust shall be to hold the shares of Common Stock to meet the
Employer's obligation with respect to the grant of Units hereunder. The
trustee may be authorized to dispose of trust assets (including shares
of Common Stock) and reinvest proceeds in alternative investments,
subject to such terms and conditions as specified in the Trust
Agreement and in accordance with applicable law. Immediately following
the end of the 120-Day Period, Employer shall transfer to the Trust
shares of Common Stock (the "Shares") in an aggregate number equal to
$2,684,000 divided by the 120-Day Average Price. Employer shall direct
the trustee of the Trust to deliver Shares (and any income earned
thereon held by the Trust) corresponding to Units which have vested in
accordance with Section 8(b) above to Employee as soon as practicable
after the date of vesting; provided, however, in the event the Employee
elects to defer payment of vested proceeds (including Shares) beyond
the date of vesting pursuant to Section 8(c) above, Employer shall
direct the trustee to deliver proceeds on the dates elected by the
Employee pursuant to Section 8(c) above, or, if earlier, on a Change in
Control.
(e) Dividends. Dividends payable on Shares held in the
Trust shall be paid to the Trust.
(f) Change in Control. In the event of a Change in
Control (as defined in Section 12), the Employee shall be entitled to
elect, during the 60-day period immediately following such Change in
Control, to surrender Shares to the Employer and receive, in full
settlement thereof, and the Employer shall be obligated to pay in cash,
the Change in Control Stock Value (as defined in Section 8(b) of the
Alumax Inc. 1993 Long Term Incentive Plan) with respect to the number
of Shares surrendered.
9. Effect of Change in Common Stock. In the event that the
outstanding shares of Common Stock shall be changed into or exchanged for a
different number or kind of shares of stock of Employer or of another
corporation (whether by reason of merger, consolidation, recapitalization,
reclassification, stock dividend, split-up, combination of shares, or
otherwise), or in the event of any extraordinary cash dividend, spin-off,
distribution of assets (including stock of another corporation), or any other
action not in the ordinary course of business that has a material effect on the
equity represented by outstanding shares of Common Stock, appropriate
adjustments, if any, as determined by the Board of Directors of Employer or, at
Employee's election, an investment banking firm mutually acceptable to Employer
and Employee, shall be made in the number, kind, or exercise price of the
Options, the Additional Options and the Shares.
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10. Employee Benefits
(a) Vacation and Sick Leave. Employee shall be entitled
to five weeks paid annual vacation, all paid Employer holidays and
reasonable sick leave.
(b) Regular Reimbursed Business Expenses. Employer shall
reimburse Employee for all expenses and disbursements reasonably
incurred and substantiated by Employee in the performance of his duties
during the Period of Employment.
(c) Employee Benefit Plans or Arrangements. In addition
to the cash compensation provided for in Section 5 hereof, Employee,
subject to meeting eligibility requirements and to the provisions of
this Agreement, shall be entitled to participate without discrimination
or duplication in all employee (including executive) benefit plans of
Employer, as presently in effect or as they may be modified or added to
by Employer from time to time, to the extent such plans are available
to other similarly situated executives or employees of Employer,
including, without limitation, plans providing retirement benefits,
medical insurance, life insurance, disability insurance, and accidental
death or dismemberment insurance.
(d) Employer's Executive Compensation Plans. In addition to
the cash compensation provided for in Section 5 hereof and the employee
benefits of Employer provided for in paragraph (c) of this Section 10,
Employee, subject to meeting eligibility requirements and to the
provisions of this Agreement, shall be entitled to participate without
discrimination or duplication in all executive compensation plans of
Employer, as presently in effect or as they may be modified or added to
by Employer from time to time, to the extent such plans are available
to similarly situated executives or employees of Employer, including,
without limitation, the Alumax Inc. 1993 Annual Incentive Plan and the
Alumax Inc. 1993 Long Term Incentive Plan (as the same may be modified,
replaced, or added to by Employer from time to time), and other stock
option plans, performance share plans, management incentive plans,
deferred compensation plans, and supplemental retirement plans;
provided that such compensation plans and programs, in the aggregate,
shall provide Employee with benefits and compensation and incentive
reward opportunities substantially no less favorable than those
provided by Employer for Employee under such plans and programs as in
effect on the date of this Agreement; and provided further that
Employer may take into account Employee's retirement in structuring his
awards under the executive compensation plans.
(e) Financial and Tax Advice. During (i) the Period of
Employment, (ii) the 12-month period following the termination of the
Period of Employment as a result of death or Disability, and (iii) the
three-year period following the voluntary termination by Employee with
Good Reason (as defined in Section 12) or the voluntary termination by
Employer without Cause (as defined in Section 12), or such shorter
period provided in Section 11, Employer shall provide Employee (or, if
Employee shall have died, his estate) at Employer's expense,
third-party professional financial and tax advisory services, primarily
oriented to planning in light of Employee's entitlement to compensation
and employee benefits and appropriate in light of the financial
circumstances of Employee (or his estate).
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11. Termination
(a) Death or Retirement. If the Period of Employment
terminates pursuant to paragraph (b) of Section 2 as a result of (1)
the death of Employee, (2) the retirement of Employee upon or after
reaching age 65, or (3) the retirement of Employee, with the consent of
Employer, prior to reaching age 65, Employee (or Employee's estate)
will be entitled to receive only:
(i) the base salary otherwise payable under
Section 5 through the end of the month in which Employee's
employment is terminated, together with salary, compensation
or benefits which have been earned or become payable as of the
date of termination but which have not yet been paid to
Employee;
(ii) a prorated portion of the award to Employee
for the year of termination under the Alumax Inc. 1993 Annual
Incentive Plan, as the same may be modified, replaced or added
to by Employer from time to time, assuming all applicable
targets for the year of termination had been met, with such
award prorated based on the number of days during the year of
Employee's termination which precede such termination;
(iii) the PARS or other Performance Awards to the
Employee for the Performance Periods in progress as of the
date of termination under the Alumax Inc. 1993 Long Term
Incentive Plan, as the same may be modified, replaced or added
to by Employer from time to time, assuming all applicable
Performance Objectives for such Performance Periods had been
met, with such PARS or other Performance Awards payable in
shares of common stock or cash as determined by the Committee
administering such Plan in its discretion and any unvested
outstanding PARS not earned during completed Performance
Periods will be fully vested and payable in shares of common
stock or cash as determined by the Committee administering
such Plan in its discretion;
(iv) such other awards or bonuses as the Board of
Directors may in its sole discretion determine;
(v) during the 12-month period following the
termination of Employee's employment as a result of the death
of Employee, maintenance in effect for the continued benefit
of Employee's dependents of all insured and self-insured
employee medical and dental benefit plans in which Employee
was participating immediately prior to termination provided
that such continued participation is possible under the
general terms and conditions of such plans (and any applicable
funding media) and Employee's dependents continue to pay an
amount equal to the Employee's regular contribution for such
participation;
(vi) during the 12-month period following the
termination of Employee's employment as a result of the death
of Employee, the financial and tax advice set forth in
paragraph (e) of Section 10; and
(vii) such other compensation and benefits, if
any, as shall be determined to be applicable in accordance
with Employer's plans and practices as in effect on the date
of termination.
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(b) Disability. If the Period of Employment terminates
pursuant to paragraph (b) of Section 2 as a result of Disability,
Employee will be entitled to receive only:
(i) the base salary otherwise payable under
Section 5 through the end of the month in which Employee's
employment is terminated, together with salary, compensation
or benefits which have been earned or become payable as of the
date of termination but which have not yet been paid to
Employee;
(ii) each month during the 12-month period
following the month in which Employee's employment is
terminated, the excess of (1) base annual salary at the rate
in effect under Section 5 on the date of termination, over (2)
the amount, if any, payable to Employee under Employer's
disability plan(s) or other arrangements for disability
compensation;
(iii) a prorated portion of the award to Employee
for the year of termination under the Alumax Inc. 1993 Annual
Incentive Plan, as the same may be modified, replaced or added
to by Employer from time to time, assuming all applicable
targets for the year of termination had been met, with such
award prorated based on the number of days during the year of
Employee's termination which precede such termination;
(iv) the PARS or other Performance Awards to
Employee for the Performance Periods in progress as of the
date of termination under the Alumax Inc. 1993 Long Term
Incentive Plan, as the same may be modified, replaced or added
to by Employer from time to time, assuming all applicable
Performance Objectives for such Performance Periods had been
met, with such PARS or other Performance Awards payable in
shares of common stock or cash as determined by the Committee
administering such Plan in its discretion, and any unvested
outstanding PARS not earned during completed Performance
Periods will be fully vested and payable in shares of common
stock or cash as determined by the Committee administering
such Plan in its discretion;
(v) term life insurance coverage at the expense
of Employer for the period from the date of termination of
Employee's employment to December 31, 1999 in a face amount
equal to the coverage maintained for Employee under
then-existing Employer benefit plans for which Employee shall
have the right to designate the beneficiaries, such coverage
to be maintained in the face amount which would from time to
time be applicable under such plans, provided such coverage
may be discontinued if at any time Employee accepts full time
employment with another employer;
(vi) during the 12-month period following the
termination of Employee's employment (or, if shorter, during
the period until the commencement of equivalent benefits from
a new employer), the financial and tax advice set forth in
paragraph (e) of Section 10; and
(vii) such other compensation and benefits, if
any, as shall be determined to be applicable in accordance
with Employer's plans and practices as in effect on the date
of termination.
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(c) Voluntary Termination by Employee without Good
Reason. If the Period of Employment terminates pursuant to paragraph
(b) of Section 2 as a result of a voluntary termination by Employee
without Good Reason, Employee will be entitled to receive only:
(i) the base salary otherwise payable under
Section 5 through the day on which Employee's employment is
terminated, together with salary, compensation or benefits
which have been earned or become payable as of the date of
termination but which have not yet been paid to Employee;
(ii) to the extent possible, the opportunity to
convert group and individual life insurance and disability
insurance policies of Employer then in effect for Employee to
individual policies of Employee upon the same terms as
similarly situated employees of Employer may apply for such
conversions; and
(iii) such other compensation and benefits, if
any, as shall be determined to be applicable in accordance
with Employer's plans and practices in effect on the date of
termination.
(d) Voluntary Termination by Employee with Good Reason or
by Employer without Cause. If the Period of Employment terminates
pursuant to paragraph (b) of Section 2 as a result of a voluntary
termination by Employee with Good Reason, or a voluntary termination by
Employer without Cause, then Employee will be entitled to receive only:
(i) the base salary otherwise payable under
Section 5 through the end of the month in which Employee's
employment is terminated, together with salary, compensation
or benefits which have been earned or become payable as of the
date of termination but which have not yet been paid to the
Employee;
(ii) a prorated portion of the award to Employee
for the year of termination under the Alumax Inc. 1993 Annual
Incentive Plan, as the same may be modified, replaced or added
to by Employer from time to time, assuming all applicable
targets for the year of termination had been met, with such
award prorated based on the number of days during the year of
Employee's termination which precede such termination;
(iii) the PARS or other Performance Awards to
Employee for the Performance Periods in progress as of the
date of termination under the Alumax Inc. 1993 Long Term
Incentive Plan, as the same may be modified, replaced or added
to by Employer from time to time, assuming all applicable
Performance Objectives for such Performance Periods had been
met, with such PARS or other Performance Awards payable in
shares of common stock or cash as determined by the Committee
administering such Plan in its discretion, and any unvested
outstanding PARS not earned during completed Performance
Periods will be fully vested and payable in shares of common
stock or cash as determined by the Committee administering
such Plan in its discretion;
(iv) a lump-sum severance payment in an amount
equal to the product of (A) the base annual salary at the rate
in effect under Section 5 on the date of termination plus the
award to Employee for the year of termination under the Alumax
- 10 -
14
Inc. 1993 Annual Incentive Plan, as the same may be modified,
replaced or added to by Employer from time to time, assuming
all applicable targets for the year of termination had been
met, multiplied by (B) a multiplier equal to the number of
full and fractional years remaining between the date of
termination and December 31, 1999; provided that the payment
made pursuant to this paragraph (iv) shall be repaid by
Employee in the event Employee violates in any material
respect the provisions of Section 14 hereof;
(v) maintenance in effect for the continued
benefit of Employee and his dependents for a period
terminating on the earlier of (A) December 31, 1999 or (B) the
commencement of equivalent benefits from a new employer of:
(A) all insured and self-insured
medical and dental benefit plans in which Employee
was participating immediately prior to termination,
provided that Employee's continued participation is
possible under the general terms and conditions of
such plans (and any applicable funding media) and
Employee continues to pay an amount equal to
Employee's regular contribution for such
participation; and
(B) the group and individual life
insurance and disability insurance policies of
Employer then in effect for Employee; provided,
however, that if Employer so elects, or if such
continued participation is not possible under the
general terms and conditions of such plans or under
such policies, Employer shall, in lieu of the
foregoing, arrange to have issued for the benefit of
Employee and Employee's dependents individual
policies of insurance providing benefits
substantially similar (on an after-tax basis) to
those described in this paragraph (v), or, if such
insurance is not available at a reasonable cost to
Employer, Employer shall otherwise provide Employee
and Employee's dependents equivalent benefits (on an
after-tax basis); provided further that, in no event
shall Employee be required to pay any premiums or
other charges in an amount greater than that which
Employee would have paid in order to participate in
Employer's plans and policies;
(vi) for a period terminating on the earlier of
(A) three years after the date of termination of employment or
(B) the commencement of equivalent benefits from a new
employer, the financial and tax advice set forth in paragraph
(e) of Section 10;
(vii) for a period terminating one year after the
date of termination of employment, the benefits equivalent on
an after-tax basis to the additional benefits Employee would
have received under the employee benefit and executive
compensation plans, whether or not qualified for federal
income tax purposes (including, without limitation, all
qualified and non-qualified retirement plans, pension plans,
profit-sharing and other defined contribution plans and excess
benefit plans, but specifically excluding incentive
compensation, stock option and performance share plans) in
which Employee was participating immediately prior to
termination, as if Employee had received credit under such
plans for service and age with Employer during such period
following Employee's termination, with such benefits
- 11 -
15
payable by Employer at the same times and in the same manner
as such benefits would have been received by Employee under
such plans; and
(viii) such other compensation and benefits, if
any, as shall be determined to be applicable in accordance
with Employer's plans and practices in effect on the date of
termination.
(e) Termination by Employer with Cause. If the Period of
Employment terminates pursuant to paragraph (b) of Section 2 as a
result of a voluntary termination by Employer with Cause, Employee will
be entitled to receive only:
(i) the base salary otherwise payable under
Section 5 through the day on which Employee's employment is
terminated, together with salary, compensation or benefits
which have been earned or become payable as of the date of
termination but which have not yet been paid to Employee;
(ii) maintenance in effect for the continued
benefit of Employee and his dependents for a period
terminating three months after the date of termination (or, if
earlier, the commencement date of equivalent benefits from a
new employer), of all insured and self-insured medical and
dental benefit plans in which Employee was participating
immediately prior to termination provided that Employee's
continued participation is possible under the general terms
and conditions of such plans (and any applicable funding
media) and Employee continues to pay an amount equal to
Employee's regular contribution for such participation; and
(iii) such other compensation and benefits, if
any, as shall be determined to be applicable under the
circumstances in accordance with Employer's plans and
practices in effect on the date of termination.
(f) Date of Payment. Except as otherwise provided herein,
all cash payments and lump-sum awards required to be made
pursuant to the provisions of paragraphs (a) through (e) of
this Section 11 shall be made no later than the fifteenth day
following the date of Employee's termination.
12. Definitions. For purposes of this Agreement, the following
capitalized terms shall have the meanings set forth below:
"Beneficial Owner," with respect to any securities, shall mean
any person who, directly or indirectly, has or shares the right to vote
or dispose of such securities or otherwise has "beneficial ownership"
of such securities (within the meaning of Rule 13d-3 and Rule 13d-5 (as
such Rules are in effect on the date of this Agreement) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")),
including pursuant to any agreement, arrangement or understanding
(whether or not in writing); provided, however, that (i) a person shall
not be deemed the Beneficial Owner of any security as a result of any
agreement, arrangement or understanding to vote such security (x)
arising solely from a revocable proxy or consent solicited pursuant to,
and in accordance with, the applicable provisions of the Exchange Act
and the rules and regulations thereunder or (y) made in connection
with, or otherwise to participate in, a proxy or consent solicitation
made, or to be made, pursuant to, and in accordance with, the
applicable provisions of the Exchange Act and the rules and regulations
thereunder, in either case described in
- 12 -
16
clause (x) or clause (y) above whether or not such agreement,
arrangement or understanding is also then reportable by such person on
Schedule 13D under the Exchange Act (or any comparable or successor
report), and (ii) a person engaged in business as an underwriter of
securities shall not be deemed to be the Beneficial Owner of any
securities acquired through such person's participation in good faith
in a firm commitment underwriting until the expiration of forty days
after the date of such acquisition.
"Cause" shall mean (i) the willful engaging by Employee in
conduct which is not authorized by the Board of Directors of Employer
or within the normal course of Employee's business decisions and is
known by Employee to be materially detrimental to the best interests of
Employer or any of its subsidiaries, (ii) the willful engaging by
Employee in conduct which Employee knows is, or has substantial reason
to believe to be, illegal to the extent of a felony violation, or the
equivalent seriousness under laws other than those of the United
States, and which has effects on Employer or Employee materially
injurious to Employer, (iii) the engaging by Employee in any willful
and conscious act of serious dishonesty, in each case which the Board
of Directors of Employer reasonably determines affects adversely, or
could in the future affect adversely, the value, reliability or
performance of Employee to Employer in a material manner, (iv) the
willful and continued failure by Employee to perform substantially his
duties to Employer under this Agreement (including any sustained and
unexcused absence of Employee from the performance of his duties under
this Agreement, which absence has not been certified in writing as due
to physical or mental illness in accordance with the procedures set
forth in this Section 9 under "Disability"), after a written demand for
substantial performance has been delivered to Employee by the Board of
Directors specifically identifying the manner in which Employee has
failed to substantially perform his duties, or (v) the sustained and
unexcused absence of Employee from the performance of his duties under
this Agreement for a period of 180 days or more within a period of 365
consecutive days, regardless of the reason for such absence, unless
Employee demonstrates that such absence is due to Disability. Any act,
or failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board of Directors of Employer or based upon the
advice of counsel for Employer shall be conclusively presumed to be
done, or omitted to be done, in good faith and in the best interests of
Employer, and shall not be deemed to constitute Cause under
subdivisions (ii) or (iii) of this definition. Notwithstanding the
foregoing, there shall not be deemed to be a voluntary termination by
Employer with Cause unless and until there shall have been delivered to
Employee a copy of a resolution duly adopted by the affirmative vote of
not less than three-quarters of the entire membership of the Board of
Directors of Employer at a meeting of such Board held after reasonable
notice to Employee and at which Employee has an opportunity, together
with his counsel, to be heard before such Board, finding that, in the
good faith opinion of such Board, Employee was guilty of the conduct
set forth above and specifying the particulars thereof in detail.
"Change in Control" shall mean the satisfaction of one or
more of the following conditions:
(i) any person is or becomes the Beneficial
Owner, directly or indirectly, of securities of Employer
representing 20 percent or more of the combined voting power
of Employer's then-outstanding securities (a "20% Beneficial
Owner"); provided, however, that (a) the term "20% Beneficial
Owner" shall not include any Beneficial Owner who has crossed
such 20 percent threshold solely as a result of an acquisition
of securities directly from Employer, or solely as a result of
an
- 13 -
17
acquisition by Employer of Employer securities, until such
time thereafter as such person acquires additional voting
securities other than directly from Employer and, after giving
effect to such acquisition, such person would constitute a 20%
Beneficial Owner; and (b) with respect to any person eligible
to file a Schedule 13G pursuant to Rule 13d-l(b)(1) under the
Exchange Act with respect to Employer securities (an
"Institutional Investor"), there shall be excluded from the
number of securities deemed to be beneficially owned by such
person a number of securities representing not more than 10
percent of the combined voting power of Employer's
then-outstanding securities;
(ii) during any period of two consecutive years
beginning after the commencement of the Period of Employment,
individuals who at the beginning of such period constitute the
Board of Directors of Employer together with those individuals
who first become Directors during such period (other than by
reason of an agreement with Employer in settlement of a proxy
contest for the election of directors) and whose election or
nomination for election to the Board was approved by a vote of
at least two-thirds (2/3) of the Directors then still in
office who either were Directors at the beginning of the
period or whose election or nomination for election was
previously so approved (the "Continuing Directors"), cease for
any reason to constitute a majority of the Board of Directors
of Employer;
(iii) the stockholders of Employer approve a
merger, consolidation, recapitalization or reorganization of
Employer, or a reverse stock split of any class of voting
securities of Employer, or the consummation of any such
transaction if stockholder approval is not obtained, other
than any such transaction which would result in at least 75%
of the total voting power represented by the voting securities
of Employer or the surviving entity outstanding immediately
after such transaction being beneficially owned by persons who
together owned at least 75% of the combined voting power of
the voting securities of Employer outstanding immediately
prior to such transaction, with the relative voting power of
each such continuing holder compared to the voting power of
each other continuing holder not substantially altered as a
result of the transaction; provided that, for purposes of this
paragraph (iii), such continuity of ownership (and
preservation of relative voting power) shall be deemed to be
satisfied if the failure to meet such 75% threshold (or to
preserve such relative voting power) is due solely to the
acquisition of voting securities by an employee benefit plan
of Employer or such surviving entity or of any subsidiary of
Employer or such surviving entity;
(iv) the stockholders of Employer approve a plan
of complete liquidation or dissolution of Employer or an
agreement for the sale or disposition of all or substantially
all the assets of Employer; or
(v) any other event which the Board of Directors
of Employer (not taking into account any vote of Employee)
determines shall constitute a Change in Control for purposes
of this Agreement; provided, however, that a Change in Control
shall not be deemed to have occurred if any of the following
conditions (each, an "exception") is satisfied:
(1) Unless a majority of the Continuing
Directors of Employer (not taking into account any
vote of Employee) determines that for purposes
- 14 -
18
of any or all of the provisions of this Agreement the
exception set forth in this paragraph (1) shall not
apply, none of the foregoing conditions would have
been satisfied but for one or more of the following
persons acquiring or otherwise becoming the
Beneficial Owner of securities of Employer: (A) any
person who has entered into a binding agreement with
Employer, which agreement has been approved by
two-thirds (2/3) of the Continuing Directors,
limiting the acquisition of additional voting
securities by such person, the solicitation of
proxies by such person or proposals by such person
concerning a business combination with Employer (a
"Standstill Agreement"); (B) any employee benefit
plan, or trustee or other fiduciary thereof,
maintained by Employer or any subsidiary of Employer;
(C) any subsidiary of Employer; or (D) Employer.
(2) Unless a majority of the Continuing
Directors of Employer (not taking into account any
vote of Employee) determines that for purposes of any
or all of the provisions of this Agreement the
exception set forth in this paragraph (2) shall not
apply, none of the foregoing conditions would have
been satisfied but for the acquisition by Employer of
another entity (whether by merger or consolidation,
the acquisition of stock or assets, or otherwise) in
exchange, in whole or in part, for securities of
Employer, provided that, immediately following such
acquisition, the Continuing Directors constitute a
majority of the Board of Directors of Employer, or a
majority of the board of directors of any other
surviving entity, and, in either case, no agreement,
arrangement or understanding exists at that time
which would cause such Continuing Directors to cease
thereafter to constitute a majority of the Board of
Directors or of such other board of directors.
(3) Unless a majority of the Continuing
Directors of Employer (not taking into account any
vote of Employee) determines that for purposes of any
or all of the provisions of this Agreement the
exception set forth in this paragraph (3) shall not
apply, none of the foregoing conditions would have
been satisfied but for Employee, or a person in which
Employee has a one-half of one percent (0.5%) or
greater equity interest, either singly or acting in
concert with one or more other persons, becoming a
20% Beneficial Owner.
(4) Employee determines that, for
purposes of any or all of the provisions of this
Agreement, none of the foregoing conditions shall be
deemed to have been satisfied.
(5) A majority of the Continuing
Directors (not taking into account any vote of
Employee) determines that a Change of Control shall
not be deemed to have occurred.
"Committee" shall mean the Human Resources and Compensation Committee
of the Employer's Board of Directors.
"Disability" shall mean the absence of Employee from his duties with
Employer on a full-time basis for one hundred eighty (180) days within any
period of three hundred and sixty-five (365) consecutive days as a result of
Employee's incapacity due to physical or mental illness as certified
- 15 -
19
in writing by a physician selected by Employee and reasonably acceptable to
Employer (it being understood that such physician shall be deemed to be
reasonably acceptable to Employer if, within a period of fifteen (15) days after
Employee notifies Employer of the name of such physician, Employer does not
object to the use of such physician), unless within thirty (30) days after
written notice to Employee by Employer, in accordance with the provisions of
Section 16, that Employee's employment is being terminated by reason of such
absence, Employee shall have returned to the full performance of Employee's
duties and shall have presented to Employer a written certificate of Employee's
good health prepared by a physician selected by Employee and reasonably
acceptable to Employer.
"Fair Market Value" of a share of Common Stock shall mean the closing
sale price of the Common Stock reported on the Composite Tape for securities
listed on the New York Stock Exchange in The Wall Street Journal on the trading
day immediately preceding the relevant valuation date (it being agreed that, if
such a closing price for the Common Stock is not so reported on such date, the
closing price on such day shall, for purposes of this paragraph, be deemed to be
the market price per share of the Common Stock on such date as determined in
good faith by the Board of Directors of Employer).
Voluntary termination by Employee with "Good Reason" shall mean a
voluntary termination by Employee resulting from the Employer (i) reducing
Employee's base annual salary as in effect immediately prior to such reduction
or reducing in a material respect Employee's opportunity to earn incentive
compensation as provided in Section 10(d) of this Agreement, (ii) effecting a
change in the position of the Employee which does not represent a promotion from
Employee's position provided for herein, (iii) assigning Employee duties or
responsibilities which are materially inconsistent with such position, (iv)
removing Employee from or failing to reappoint or reelect Employee to such
position, except in connection with a termination as a result of death,
Disability, voluntary termination by Employee, retirement by Employee or Cause,
(v) serving notice on Employee pursuant to Section 2(a) of this Agreement at any
time prior to Employee's reaching age 65, or (vi) otherwise materially breaching
its obligations under this Agreement, in each case after notice in writing from
Employee to Employer and a period of 30 days after such notice during which
Employer fails to correct such conduct.
"120-Day Average Price" of a share of Common Stock shall mean the
average of the closing sale prices of the Common Stock reported on the Composite
Tape for securities listed on the New York Stock Exchange in the Wall Street
Journal for the first 120 trading days on the New York Stock Exchange that the
Common Stock is fully listed on the New York Stock Exchange; provided, however,
that if before the end of such 120-day period (a) any person shall have
acquired, or publicly disclosed an intention or proposal to acquire (whether by
tender offer, exchange offer, or otherwise), Beneficial Ownership of securities
of Employer that would result in such person being a 20% Beneficial Owner, (b)
any person shall have proposed, or publicly announced an intention to propose, a
merger, consolidation or similar transaction involving Employer or any of its
subsidiaries (other than mergers, reorganizations, consolidations or
dissolutions involving existing subsidiaries of employer), (c) Employer shall
have publicly proposed, or publicly announced an intention to propose, the
disposition, by sale, lease, exchange or otherwise, of assets of Employer or its
subsidiaries representing 30% or more of the consolidated assets of Employer and
its subsidiaries or (d) the Board of Directors of Employer determines, in its
sole discretion, without regard to the vote of the Employee, that a third party
has taken action involving a possible Change in Control or a material part of
Employer's business or assets and such action is affecting the public trading
price of the Common Stock, the 120-day period shall be
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20
deemed to have ended 10 calendar days prior to the date of the public
announcement of any such acquisition, disclosure, proposal or the making of such
determination.
"120-Day Period" shall mean the period of 120 days (or shorter period)
used to determine the 120-Day Average Price.
13. Excise Tax Gross-up. In the event that Employee becomes
entitled to one or more payments (with a "payment" including, without
limitation, the vesting of an option or other non-cash benefit or property,
whether pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with Employer or any affiliated company) (the "Total Payments"),
which are or become subject to the tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), (or any similar tax that may
hereafter be imposed) but not any such tax imposed as a result of or in
connection with the business combination between AMAX and Cyprus Minerals
Company (the "Excise Tax"), Employer shall pay to Employee at the time specified
below an additional amount (the "Gross-up Payment") (which shall include,
without limitation, reimbursement for any penalties and interest that may accrue
in respect of such Excise Tax) such that the net amount retained by Employee,
after reduction for any Excise Tax (including any penalties or interest thereon)
on the Total Payments and any federal, state and local income or employment tax
and Excise Tax on the Gross-up Payment provided for by this Section 13, but
before reduction for any federal, state or local income or employment tax on the
Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an
amount equal to the product of any deductions disallowed for federal, state or
local income tax purposes because of the inclusion of the Gross-up Payment in
Employee's adjusted gross income multiplied by the highest applicable marginal
rate of federal, state or local income taxation, respectively, for the calendar
year in which the Gross-up Payment is to be made.
For purposes of determining whether any of the Total Payments will be
subject to the Excise Tax and the amount of such Excise Tax,
(i) the Total Payments shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all
"excess parachute payments" within the meaning of Section 280G(b)(1) of
the Code shall be treated as subject to the Excise Tax, unless, and
except to the extent that, in the written opinion of independent
compensation consultants or auditors of nationally recognized standing
selected by Employer and reasonably acceptable to Employee
("Independent Auditors"), the Total Payments (in whole or in part) do
not constitute parachute payments, or such excess parachute payments
(in whole or in part) represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code
in excess of the base amount within the meaning of Section 280G(b)(3)
of the Code or are otherwise not subject to the Excise Tax,
(ii) the amount of the Total Payments which shall be
treated as subject to the Excise Tax shall be equal to the lesser of
(A) the total amount of the Total Payments or (B) the amount of excess
parachute payments within the meaning of Section 280G(b)(1) of the Code
(after applying clause (i) above), and
(iii) the value of any non-cash benefits or any deferred
payment or benefit shall be determined by Employer's Independent
Auditors appointed pursuant to clause (i) above in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.
- 17 -
21
For purposes of determining the amount of the Gross-up Payment,
Employee shall be deemed (A) to pay federal income taxes at the highest marginal
rate of federal income taxation for the calendar year in which the Gross-up
Payment is to be made; (B) to pay any applicable state and local income taxes at
the highest marginal rate of taxation for the calendar year in which the
Gross-up Payment is to be made, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes if
paid in such year (determined without regard to limitations on deductions based
upon the amount of Employee's adjusted gross income); and (C) to have otherwise
allowable deductions for federal, state and local income tax purposes at least
equal to those disallowed because of the inclusion of the Gross-up Payment in
Employee's adjusted gross income. In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account hereunder
at the time the Gross-up Payment is made, Employee shall repay to Employer at
the time that the amount of such reduction in Excise Tax is finally determined
(but, if previously paid to the taxing authorities, not prior to the time the
amount of such reduction is refunded to Employee or otherwise realized as a
benefit by Employee) the portion of the Gross-up Payment that would not have
been paid if such Excise Tax had been applied in initially calculating the
Gross-up Payment, plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax
is determined to exceed the amount taken into account hereunder at the time the
Gross-up Payment is made (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-up Payment),
Employer shall make an additional Gross-up Payment in respect of such excess
(plus any interest and penalties payable with respect to such excess) at the
time that the amount of such excess is finally determined.
The Gross-up Payment provided for above shall be paid on the thirtieth
day (or such earlier date as the Excise Tax becomes due and payable to the
taxing authorities) after it has been determined that the Total Payments (or any
portion thereof) are subject to the Excise Tax; provided, however, that if the
amount of such Gross-up Payment or portion thereof cannot be finally determined
on or before such day, Employer shall pay to Employee on such day an estimate,
as determined by Employer's Independent Auditors appointed pursuant to clause
(i) above, of the minimum amount of such payments and shall pay the remainder of
such payments (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code), as soon as the amount thereof can be determined. In
the event that the amount of the estimated payments exceeds the amount
subsequently determined to have been due, such excess shall constitute a loan by
Employer to Employee, payable on the fifth day after demand by Employer
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code). If more than one Gross-up Payment is made, the amount of each Gross-up
Payment shall be computed so as not to duplicate any prior Gross-up Payment.
Employer shall have the right to control all proceedings with the Internal
Revenue Service that may arise in connection with the determination and
assessment of any Excise Tax and, at its sole option, Employer may pursue or
forego any and all administrative appeals, proceedings, hearings and conferences
with any taxing authority in respect of such Excise Tax (including any interest
or penalties thereon); provided, however, that Employer's control over any such
proceedings shall be limited to issues with respect to which a Gross-up Payment
would be payable hereunder and Employee shall be entitled to settle or contest
any other issue raised by the Internal Revenue Service or any other taxing
authority. Employee shall cooperate with Employer in any proceedings relating to
the determination and assessment of any Excise Tax and shall not take any
position or action that would materially increase the amount of any Gross-up
Payment hereunder.
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22
14. Non-Competition and Non-Disclosure; Employee Cooperation
(a) Without the consent in writing of the Board of
Directors of Employer, upon termination of Employee's employment for
any reason, Employee will not for a period of three years thereafter,
acting alone or in conjunction with others, directly or indirectly (i)
engage (either as owner, partner, stockholder, employer or employee) in
any business in which he has been directly engaged, or has supervised
as an executive, during the last two years prior to such termination
and which is directly in competition with a business conducted by
Employer or any of its subsidiaries; (ii) induce any customers of
Employer or any of its subsidiaries with whom Employee has had contacts
or relationships, directly or indirectly, during and within the scope
of his employment with Employer or any of its subsidiaries, to curtail
or cancel their business with such companies or any of them; (iii)
solicit or canvass business from any person who was a customer of
Employer or any of its subsidiaries at or during the two-year period
immediately preceding termination of Employee's employment; or (iv)
induce, or attempt to influence, any employee of Employer or any of its
subsidiaries to terminate his employment; provided, however, that the
limitation contained in clause (i) above shall not apply if Employee's
employment is terminated as a result of a voluntary termination by
Employee with Good Reason, a voluntary termination by Employer without
Cause or retirement upon reaching age 65 or thereafter; and provided
further, that the limitation contained in clause (i) above shall not
prohibit Employee from engaging in any business directly competitive
with Employer or any of its subsidiaries as a director, consultant or
private investor upon retirement upon reaching age 62 or thereafter
with the consent of a majority of the Board of Directors of Employer,
which consent shall not be unreasonably withheld. The provisions of
subparagraphs (i), (ii), (iii) and (iv) above are separate and distinct
commitments independent of each of the other subparagraphs. It is
agreed that the ownership of not more than 1/2 of 1% of the equity
securities of any company having securities listed on an exchange or
regularly traded in the over-the-counter market shall not, of itself,
be deemed inconsistent with clause (i) of this paragraph (a).
(b) Employee shall not, at any time during the Period of
Employment or following Employee's termination of employment for any
reason whatsoever, disclose, use, transfer or sell, except in the
course of employment with Employer, any confidential or proprietary
information of Employer and its subsidiaries so long as such
information has not otherwise been disclosed or is not otherwise in the
public domain, except as required by law or pursuant to legal process.
(c) Employee agrees to cooperate with Employer, by making
himself available to testify on behalf of Employer or any subsidiary or
affiliate of Employer, in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, and to assist
Employer, or any subsidiary or affiliate of Employer in any such
action, suit or proceeding, by providing information and meeting and
consulting with the Board of Directors of Employer or its
representatives or counsel, or representatives or counsel of Employer,
or any subsidiary or affiliate of Employer, as requested by such Board
of Directors, representatives or counsel. Employer agrees to reimburse
the Employee, on an after-tax basis, for all expenses actually incurred
in connection with his provision of testimony or assistance.
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23
15. Governing Law; Disputes; Arbitration
(a) This Agreement is governed by and is to be construed,
administered and enforced in accordance with the laws of the State of
Delaware, without regard to the conflict of laws principles thereof. If
under such law, any portion of this Agreement is at any time deemed to
be in conflict with any applicable statute, rule, regulation, ordinance
or principle of law, such portion shall be deemed to be modified or
altered to the extent necessary to conform thereto or, if that is not
possible, to be omitted from this Agreement; and the invalidity of any
such portion shall not affect the force, effect and validity of the
remaining portion hereof.
(b) All reasonable costs and expenses (including fees and
disbursements of counsel) incurred by Employee in seeking to enforce
rights pursuant to this Agreement shall be paid or reimbursed to
Employee promptly by Employer, whether or not Employee is successful in
asserting such rights, except that Employee shall repay to Employer any
such amounts to the extent that an arbitrator or court issues a final,
unappealable order setting forth a determination that Employee's claim
was frivolous or advanced by Employee in bad faith; provided, however,
that with respect to any Change in Control, the Board of Directors of
Employer may determine that the repayment by Employee contemplated by
the immediately preceding clause of this paragraph shall not apply to
any claims arising out of such Change in Control, which determination
shall thereafter be irrevocable with respect to such claims.
(c) Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by
arbitration in Atlanta, Georgia by three arbitrators in accordance with
the rules of the American Arbitration Association in effect at the time
of submission to arbitration. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. For purposes of
settling any dispute or controversy arising hereunder or for the
purpose of entering any judgment upon an award rendered by the
arbitrators, Employer and Employee hereby consent to the jurisdiction
of any or all of the following courts: (i) the United States District
Court for the Northern District of Georgia, (ii) any of the courts of
the State of Georgia, or (iii) any other court having jurisdiction.
Employer and Employee further agree that any service of process or
notice requirements in any such proceeding shall be satisfied if the
rules of such court relating thereto have been substantially satisfied.
Employer and Employee hereby waive, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to
such jurisdiction and any defense of inconvenient forum. Employer and
Employee hereby agree that a judgment upon an award rendered by the
arbitrators may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Subject to Section
15(b), Employer shall bear all costs and expenses arising in connection
with any arbitration proceeding pursuant to this Section 15.
Notwithstanding any provision in this Section 15, Employee shall be
entitled to seek specific performance of Employee's right to be paid
during the pendency of any dispute or controversy arising under or in
connection with this Agreement.
(d) Any amounts that have become payable pursuant to the
terms of this Agreement or any judgment by a court of law or a decision
by arbitrators pursuant to this Section 15 but which are not timely
paid shall bear interest at the prime rate in effect at the time such
payment first becomes payable, as quoted by The Chase Manhattan Bank,
New York, New York.
16. Notices. All notices under this Agreement shall be in writing
and shall be deemed effective when received (in Employer's case, by its
Secretary) or seventy-two (72) hours after deposit thereof in the U.S. mails,
postage prepaid, for delivery as registered or certified mail,
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addressed, in the case of Employee, to him at his address specified below, and
in the case of Employer, to its principal United States corporate headquarters,
attention of the Secretary, or to such other address as Employee or Employer may
by notice designate in writing at any time or from time to time to the other
party. In lieu of notice by deposit in the U.S. mail, a party may give notice by
prepaid cable, telegram, telex or telecopy and such notice shall be effective
twenty-four (24) hours after it has been properly sent.
17. Withholding. All payments to be made to Employee under this
Agreement will be subject to required withholding taxes and other deductions.
18. Mitigation. Employee shall not be required to mitigate the
amount of any payment Employer becomes obligated to make to Employee in
connection with this Agreement, by seeking other employment or otherwise, and
except as expressly provided in this Agreement, amounts or other benefits to be
paid or provided to Employee pursuant to this Agreement shall not be reduced by
reason of Employee obtaining other employment or receiving similar payments or
benefits from another employer.
19. Successors; Binding Agreement
(a) Any Successor (as hereinafter defined) to Employer shall be
bound by this Agreement. Employer will seek to have any Successor assent to the
fulfillment by Employer of its obligations under this Agreement at Employee's
request. Failure of Employer to obtain such assent within thirty (30) days after
such request shall constitute Good Reason for termination by Employee of
Employee's employment and, upon a voluntary termination by Employee pursuant to
Section 2, shall entitle Employee to the benefits provided in Section 11(d). For
purposes of this Agreement, "Successor" shall mean any person that succeeds to,
or has the practical ability to control (either immediately or with the passage
of time), Employer's business directly, by merger or consolidation, or
indirectly, by purchase of the Employer's voting securities, all or
substantially all of its assets or otherwise.
(b) For purposes of this Agreement, "Employer" shall include any
corporation or other entity which is the surviving or continuing entity in
respect of any amalgamation, merger, consolidation, dissolution, asset
acquisition or other form of business combination.
20. Pension Credit and Additional Pension Credit
(a) The Employee shall be entitled to a supplemental pension
benefit equal to the excess, if any, of (x) over (y) where (x) and (y) are as
defined below:
(x) the pension benefit that would have been payable to
the Employee under the Alumax Retirement Plan for
Salaried Employees, as it may from time to time be
amended (or any successor plan which is a defined
benefit plan) (the "Plan") if the period of
employment with AMAX Inc. and the period September
15, 1981 through May 31, 1985 were included in
Employee's Benefit Service (as defined in the Plan).
The pension benefit determined under this clause (x)
shall be determined without regard to any limits
imposed by the Internal Revenue Code (currently
Sections 401(a)(17) and 415).
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25
(y) the pension benefit paid or payable under any defined
benefit plan (whether or not qualified under the
Internal Revenue Code) sponsored by AMAX Inc. or
Alumax Inc. for which any of the periods of service
are included in the calculation of the pension
benefit calculated under clause (x) above.
The supplemental pension benefit shall commence as of the same
date and shall be paid in the same form as Employee's benefit under the Plan.
(b) To compensate the Employee for deferring his retirement and
reduced benefits resulting from such deferral as well as a loss of benefits
associated with the Employee's mandatory receipt of benefits under the defined
benefit plans (whether or not qualified under the Internal Revenue Code)
sponsored by AMAX Inc., the Employer agrees to pay the Employee the lump sum of
$1,175,876 at the time of expiration of the Period of Employment on December 31,
1999, in addition to and without offset of the pension benefits otherwise
payable to the Employee (the "Additional Pension Payment"). The Additional
Pension Payment shall be paid on a prorated basis (based upon the number of days
during the period between December 5, 1996 and December 31, 1999 expired prior
to the Employee's termination and the total number of days in such period) in
the event of (A) the death or Disability (as defined in Section 12) of Employee,
(B) termination of Employee's employment by Employer without Cause (as defined
in Section 12), or by Employee with Good Reason (as defined in Section 12), or
(C) a Change in Control (as defined in Section 12), but no Additional Pension
Payment shall be payable to the Employee (X) in the event of termination of
Employee's employment by Employer with Cause or by Employee other than with Good
Reason, or (Y) if Employee retires prior to December 31, 1999, unless Employer's
Board of Directors, in its sole discretion and not taking into account any vote
of Employee, approves such retirement and a prorated payment of the Additional
Pension Payment.
(c) The benefit entitlements of Employee provided in this Section
20 shall survive any termination of the Period of Employment pursuant to
Section 2.
21. Miscellaneous.
(a) Except to the extent that the terms of this Agreement confer
benefits that are more favorable to Employee than are available under any other
employee benefit or executive compensation plan of Employer in which Employee is
a participant, Employee's rights under any such employee (including executive)
benefit plan or executive compensation plan shall be determined in accordance
with the terms of such plan (as it may be modified or added to by Employer from
time to time).
(b) This Agreement constitutes the entire understanding between
Employer and Employee relating to employment of Employee by Employer and its
subsidiaries and supersedes and cancels all prior agreements and understandings
with respect to the subject matter of this Agreement and such other written
agreements, including the Executive Separation Policy of the Employer. Employee
shall not be entitled to any payment or benefit under this Agreement which
duplicates a payment or benefit received or receivable by Employee under such
prior agreements and understandings or under any employee (including executive)
benefit plan or executive compensation plan of the Employer.
(c) This Agreement may be amended but only by a subsequent written
agreement of the parties.
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26
(d) This Agreement shall be binding upon and shall inure to the
benefit of Employee, his heirs, executors, administrators and beneficiaries, and
shall be binding upon and inure to the benefit of Employer and its successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the year and day first above written.
ALUMAX INC.
By
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Vice President
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X. Xxxxx Born
Address of Employee for Purposes of
Notices:
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