Exhibit 10.29
RETENTION AGREEMENT FOR THE XXXXXX ALUMINUM &
CHEMICAL CORPORATION KEY EMPLOYEE RETENTION PLAN
(EFFECTIVE SEPTEMBER 3, 2002) (A)
THIS AGREEMENT (the "Agreement") is made, effective as of the ____ day
of ____________, 2002, between Xxxxxx Aluminum & Chemical Corporation, a
Delaware corporation (the "Company"), and _______________________________
(hereinafter called the "Participant").
R E C I T A L S:
WHEREAS, the Company has adopted the Xxxxxx Aluminum & Chemical
Corporation Key Employee Retention Plan (Effective September 3, 2002) (the
"Plan"), which Plan is incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein will have the same
meanings as in the Plan; and
WHEREAS, the Committee has determined that it would be in the best
interests of the Company to grant the retention award provided for herein (the
"Award") to the Participant pursuant to the Plan and the terms set forth herein.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Award. Subject to the terms and conditions of the
Plan and the additional terms and conditions set forth in this Agreement, the
Company hereby grants to the Participant an Award. Pursuant to the terms of the
Award, the Participant shall earn the right to receive a payment (a "Retention
Payment") on each Vesting Date (as defined below). Each Retention Payment shall
be equal to the product of one-half of the Participant's Base Salary, multiplied
by ____, payable as described below. Upon execution of this Agreement, the
Participant hereby waives the right to receive any payments or awards under the
Prior Plan and the Prior Plan shall be superseded by this Agreement and shall be
of no further force or effect.
2. Vesting. Subject to the Participant's continued employment with
the Company, the Participant will earn the right to receive a Retention Payment
on each of September 30, 2002, March 31, 2003, September 30, 2003 and March 31,
2004 (each, a "Vesting Date").
3. Payment. Retention Payments that vest in accordance with
Section 2 shall be paid to the Participant in a lump sum on the applicable
Vesting Date.
4. Termination.
(a) If the Participant's employment with the Company is terminated
prior to any Vesting Date for any reason, other than as a result of (i) the
Participant's death, (ii) the Participant's Disability, (iii) the Participant's
retirement from the Company on or after the Participant attains age 62 or (iv)
the Company's termination of the Participant's employment without "Cause" (as
defined below) (each, a "Prorating Event"), the portion of the Award that would
have become vested and payable on such Vesting Date and all subsequent portions
of the Award, if any, that would have become payable following such Vesting Date
will be forfeited by the Participant without consideration.
(b) If the Participant's employment with the Company is terminated
on account of a Prorating Event, the Participant shall be entitled to receive a
payment on the earlier of (i) 30 days following the Prorating Event or (ii) the
Vesting Date immediately following the Prorating Event, in an amount equal to
the product of (A) the amount that would have been payable to the Participant on
the Vesting Date immediately following the Prorating Event, multiplied by (B) a
fraction, the numerator of which is the number of days which have elapsed
between the Vesting Date immediately preceding such Prorating Event (or, if no
Vesting Date has occurred at the time of such Prorating Event, April 1, 2002)
(the "Measurement Date") and the date of such Prorating Event, and the
denominator of which is the number of total days in the period from the
Measurement Date to the Vesting Date immediately following the Prorating Event.
No further retention payments shall be made to the Participant.
(c) For purposes of this Agreement, "Cause" means (1) the
Participant's engaging in fraud, embezzlement, misconduct or any act of
dishonesty with respect to the Company or its affiliates, (2) the Participant's
habitual drug or alcohol use which impairs the ability of the Participant to
perform his duties with the Company or its affiliates, (3) the Participant's
indictment with respect to, conviction of, or plea of guilty or no contest to,
any felony, or other comparable crime under applicable local law (except, in any
event, for motor vehicle violations not involving personal injuries to third
parties or driving while intoxicated), or the Participant's incarceration with
respect to any of the foregoing that, in each case, impairs the Participant's
ability to continue to perform his duties with the Company and its affiliates,
or (4) the Participant's material breach of any written employment agreement or
other agreement between the Company and the Participant, or of the Xxxxxx
Aluminum & Chemical Corporation Code of Business Conduct, or failure by the
Participant to substantially perform his or her duties for the Company which
remains uncorrected or reoccurs after written notice has been delivered to the
Participant demanding substantial performance and the Participant has had a
reasonable opportunity to correct such breach or failure to perform.
5. Repayment of Award. If within ninety (90) days following the
payment of any Award in accordance with Section 3 or Section 4 above, a
Participant's employment with the Company is terminated for any reason other
than as a result of a Prorating Event, the Participant must immediately return
such payment to the Company.
6. No Right to Continued Employment. Neither the Plan nor this
Agreement will be construed as giving the Participant the right to be retained
in the employ of the Company. Further, the Company may at any time dismiss the
Participant, free from any liability or any claim under the Plan or this
Agreement, except as otherwise expressly provided therein or herein.
7. Transferability. The Award may not, at any time, be assigned,
alienated, pledged, attached, sold or otherwise transferred or encumbered by the
Participant and any such purported assignment, alienation, pledge, attachment,
sale, transfer or encumbrance will be void and unenforceable against the
Company; provided that the designation of a beneficiary will not constitute an
assignment, alienation, pledge, attachment, sale, transfer or encumbrance. No
such permitted transfer to heirs or legatees of the Participant will be
effective to bind the Company unless the Committee will have been furnished with
written notice thereof and a copy of such evidence as the Committee may deem
necessary to establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions hereof.
8. Withholding. The Company will deduct from each payment all
applicable federal, state, local and other taxes required by law to be withheld
with respect to such payments.
9. Choice of Law. The interpretation, performance and enforcement
of this Agreement will be governed by the laws of the State of Texas, without
regard to principles of conflicts of law.
10. Award Subject to Plan. By entering into this Agreement the
Participant agrees and acknowledges that the Participant has received and read a
copy of the Plan. The Award is subject to the Plan. The terms and provisions of
the Plan as it may be amended from time to time are hereby incorporated herein
by reference. In the event of a conflict between any term or provision contained
herein and a term or provision of the Plan, the applicable terms and provisions
of the Plan will govern and prevail.
11. Confidentiality. Except as otherwise required by law or in
connection with tax and personal planning and family matters, the Participant
agrees to keep his participation in the Plan and the amount of the Award
confidential.
12. Signature in Counterparts. This Agreement may be signed in
counterparts, each of which will be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Complete Agreement. This Agreement embodies the complete
agreement and understanding between the parties with respect to the subject
matter hereof and effective as of its date supersedes and preempts any prior
understandings, agreements or representations by or between the parties, written
or oral (including, without limitation, any award or agreement granted under the
Xxxxxx Aluminum & Chemical Corporation Employee Retention Program (Effective
January 15, 2002)), which may have related to the subject matter hereof in any
way. The Company and the Participant hereby agree that upon execution of this
Agreement, any such prior agreements and the Prior Plan shall be superseded by
this Agreement and such prior agreements and the Prior Plan shall be of no
further force or effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the ____ day of ____________, 2002.
Xxxxxx Aluminum & Chemical Corporation
By:
Name:
Title:
--------------------------------
Participant
(A) Form of Retention Agreement entered into as of September 3, 2002 with
executive officers of KAC and KACC other than Xxxxxx X. Xxxx, Xxxx X.
Xxxxxxx, Xxxxxx X. Xxxxx, Xxxx X. Xx Xxx, Xxxxxx X. Xxxxx and one other
executive officer.
