AGREEMENT
This Agreement is made and entered into to be effective as
of this January 1, 1999, by and between XXXXXX ALUMINUM &
CHEMICAL CORPORATION, a Delaware corporation with corporate
offices at 0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000,
hereinafter referred to as "Kaiser", and Xxxxxxxx X. Xxxxx, whose
address is 0000 Xxxxxx Xxxxx, Xxx X, Xxxxxxx, XX 00000,
hereinafter referred to as "Consultant".
In consideration of the mutual promises made herein, the
parties agree as follows:
1. Consulting Services.
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A. The Company hereby retains Consultant's services
as a consultant. Consultant agrees to consult with and
advise the Company regarding (i) the management,
administration, organization, structure, policies and
operations of Kaiser, its business units, subsidiaries and
their respective successors, if any, (collectively, the
"Kaiser Entities"), (ii) developing, analyzing and
implementing strategic plans and transactions involving one
or more of the Kaiser Entities including, but not limited
to, the alumina business unit, (iii) information technology
and systems development, and (iv) such other similar matters
reasonably requested by Kaiser.
B. Consulting services may be requested by Kaiser
from time to time during the term of the Agreement. While
Kaiser may not utilize Consultant's services fully
throughout the term of this Agreement, Consultant agrees to
make his himself generally available upon Xxxxxx'x
reasonable request during normal business hours and, if
requested by Kaiser, to devote his entire time, energy and
skill during normal business hours to the business and
affairs of Kaiser and the Kaiser Entities and to the
promotion of their interests. Consultant further agrees and
acknowledges that his engagement hereunder may require him
to undertake reasonable travel on behalf of Kaiser.
C. In connection with the services contemplated by
this Agreement, Consultant agrees to consult with and keep
the appropriate members of Xxxxxx'x senior leadership and
the Board of Directors, officers, consultants and
representatives of the Kaiser Entities fully informed of
Consultant's efforts under this Agreement.
2. Term. This Agreement shall be for a term of one year
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commencing on the effective date and terminating on December 31,
1999, unless otherwise terminated in accordance with the terms
and conditions of this Agreement.
3. Retainer, Payment and Automobile.
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A. As consideration for Consultant's willingness to
hold himself available to Kaiser and the Kaiser Entities
throughout the term of this Agreement and for providing the
consulting services contemplated by this Agreement, Kaiser
agrees to pay Consultant a retainer at a monthly rate equal
to Consultant's base pay prior to Consultant's termination
of employment with Kaiser. The retainer shall be payable by
Kaiser to Consultant in equal semimonthly installments of
Twelve Thousand Eighty Four Dollars ($12,084.00) to be paid
on the fifteenth (15th) and last day of each month during
which such compensation is due hereunder.
B. During the term of this Agreement, Kaiser agrees
that Consultant may retain the use of the automobile
provided by Kaiser at the time of Consultant's termination
of employment upon substantially the same terms and
conditions except as required under Xxxxxx'x corporate
policies and procedures as a result of Consultant no longer
being employed by Kaiser.
4. Reimbursement for Expenses. Kaiser shall
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reimburse Consultant upon the presentation of substantiating
invoices, for the following described expenses incurred by
Consultant in connection with, and as a necessity of, the
performance of his services hereunder:
A. All reasonable, normal, and necessary travel
expenses, including airline tickets, meals, lodging, rental
cars, and related expenses, incurred by Consultant while
away from his office, consistent with Xxxxxx'x existing
policies.
B. Cost of telephone and facsimile when used on
behalf of Kaiser.
C. All other reasonable expenses incurred by
Consultant as the direct and necessary result of providing
the consulting services contemplated by this Agreement.
5. Independent Contractor.
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A. It is understood and agreed that Consultant is
acting as an independent contractor and not as an agent or
employee of Kaiser in the execution and performance of this
Agreement and that Consultant has no authority to act for,
legally represent, or otherwise bind or legally commit
Kaiser in any way.
B. It is further understood and agreed that
Consultant is not and will not be eligible to participate
in, or accrue benefits under any employee benefit plans of
Kaiser, including but not limited to pensions, insurance,
disability and/or vacation plans, for services performed
under this Agreement. This provision will not affect
Consultant's eligibility for such benefits based on services
previously performed by Consultant as an employee of Kaiser.
C. Finally, it is understood and agreed that
Consultant shall be solely responsible for paying, and
agrees to pay, any and all applicable federal, state, and
local taxes and fees in connection with his activities in
connection with this Agreement, and he will abide by all
applicable federal, state, and local laws in connection
therewith. Consultant acknowledges that Kaiser shall not
deduct or be responsible for the withholding of taxes of any
kind.
6. Protection of Proprietary or Confidential Information.
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A. Any and all communications between any of the
Kaiser Entities and Consultant shall be privileged and
confidential, subject to waiver only by the appropriate
Kaiser Entity, and may not be divulged by Consultant to any
third party without the prior written authorization of the
appropriate Kaiser Entity except to the extent necessary to
perform the services contemplated by this Agreement.
Consultant acknowledges that by reason of his experience
with Kaiser as an officer and employee prior to the
effective date of this Agreement he has had access to
proprietary and confidential information with respect to the
Kaiser, its business units, subsidiaries and affiliates and
their respective financial and business affairs and
strategic plans ("Confidential Information") and that he
will continue to be exposed to such information during his
engagement under this Agreement. In recognition of the
foregoing, Consultant agrees not to disclose, use, transfer
or sell, except in the course of Consultant's engagement
hereunder, any Confidential Information 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. Upon the request of Kaiser,
Consultant shall surrender to Kaiser any and all personal
property, software, disks, work papers, reports, manuals,
documents and the like (including all originals and copies
thereof) in his possession or control which contain any
Confidential Information.
B. Consultant further acknowledges (i) that the
Confidential Information constitutes valuable and unique
property, that irreparable damage would result to Kaiser if
any of the Confidential Information were disclosed to a
third party except as expressly provided in this Agreement,
(ii) that the appropriate amount of any money damages would
be difficult to ascertain, and (iii) that, as a result,
money damages would not be a sufficient remedy for a breach
or anticipated breach by Consultant of the foregoing
paragraph. Therefore, Consultant acknowledges that Kaiser
shall be entitled, in addition to any other rights and
remedies which may be available to Kaiser, to specific
performance and/or injunctive or other equitable relief as a
remedy for any such breach or anticipated breach of the
foregoing paragraph. If a court exercising applicable
jurisdiction determines that Kaiser is entitled to
injunctive and/or other equitable relief, Consultant agrees
to, and hereby does, waive any requirement for the securing
or posting of any bond in connection with any such remedy.
No failure or delay by Kaiser in exercising any right,
power, or privilege hereunder, at law or in equity, shall
operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude or limit any other or further
exercise thereof.
7. Non-Competition and Non-Disparagement.
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A. Without the consent in writing of Kaiser,
Consultant will not for a period of eighteen (18) months
beginning on the effective date of this Agreement and ending
on June 30, 2000, 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 or
advised in any manner, as an employee of Kaiser or an
officer of any of the Kaiser Entities and which is directly
in competition with a business conducted by any of the
Kaiser Entities; (ii) induce any customers of the Kaiser
Entities with whom Consultant has had or will have contacts
or relationships, directly or indirectly, during and within
the scope of his employment with Kaiser or during the term
of this Agreement to curtail or cancel their business with
any of the Kaiser Entities; (iii) solicit or canvas business
from any person who was a customer of any of the Kaiser
Entities at or during the two-year period immediately
preceding termination of Consultant's employment with Kaiser
or at any time during the term hereof; or (iv) induce, or
attempt to influence, any employee of any of the Kaiser
Entities to terminate his or her employment. The provisions
of clauses (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 of 5% 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) above.
B. The foregoing covenants on the part of Consultant
shall be construed as agreements independent of any other
provision of this Agreement, and the existence of any claim
or cause of action by Consultant against Kaiser, whether
predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Kaiser of any of
those covenants.
C. Consultant shall not, at any time, make any
statement which might be reasonably regarded as disparaging
to any of the Kaiser Entities, their respective Boards of
Directors, Directors, officers, employees, operations,
businesses, business practices, strategic and business plans
or which may be reasonably expected to reflect unfavorably
on any Kaiser Entity, except as may be required by law.
8. Cooperation. Consultant agrees to cooperate with
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Kaiser and each of the Kaiser Entities by making himself
available to testify on behalf of any of them in any action, suit
or proceeding, whether civil, criminal, administrative or
investigative, and to assist any of the Kaiser Entities in any
such action, suit or proceeding, by providing information and
meeting and consulting with the representatives or counsel of any
of the Kaiser Entities. Kaiser agrees to reimburse Consultant
for all reasonable expenses actually incurred in connection with
his provision of testimony or assistance.
9. Termination of Engagement.
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A. Consultant may terminate this Agreement by giving
thirty (30) days' prior written notice of termination to
Kaiser.
X. Xxxxxx may terminate this Agreement upon the
earlier to occur of (i) the death or permanent disability
of Consultant such that Consultant is no longer capable in
the reasonable opinion of Kaiser to perform the services
contemplated by this Agreement, (ii) the conviction of
Consultant for the commission of any felony in any state or
federal court in the United States of America, or in any
jurisdiction where he is engaged, and (iii) Consultant's
breach of this agreement, which breach continues beyond the
thirty (30) day period beginning on the date Consultant
receives written notice of such breach from Kaiser.
C. Termination of Consultant's services hereunder by
Kaiser shall not be construed to be a breach of this
Agreement by Kaiser, and shall terminate all compensation
and benefits to which Consultant is entitled under this
Agreement. Further, in the event of such termination,
Kaiser shall have no further liability to Consultant under
this Agreement and all rights and obligations hereunder
shall cease, except for (i) the rights and obligations under
Sections 3 and 4 to the extent that Consultant has not been
paid his retainer for any period in which this Agreement
remained in effect and has not been reimbursed for his
expenses in accordance with the terms of this Agreement,
(ii) the rights and obligations under Section 6 regarding
protection of confidential information, (iii) the
obligations under Section 7 regarding, among other things,
Consultant's agreement not to compete or otherwise interfere
with the business or customers of any of the Kaiser
Entities, and (iv) all procedural and remedial provisions of
this Agreement.
10. Assignment. Consultant shall neither, without the
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prior written consent of Kaiser, assign this Agreement or any of
the rights hereunder, in whole or in part, nor delegate any of
the duties hereunder, in whole or in part.
11. Applicable Law. This Agreement is made in the State of
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Texas and shall in all respects be governed by and construed in
accordance with the internal laws of Texas, without regard to the
rules of the conflict of laws of such state. Except as otherwise
permitted by Section 6 in connection with seeking specific
performance and/or injunctive or other equitable relief as a
remedy for any such breach or anticipated breach of Section 6 of
this Agreement, any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by
arbitration in Houston, Texas by three arbitrators in accordance
with the Commercial Arbitration 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.
12. Notices. Where a notice is called for by this
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Agreement, it shall mean a notice in writing signed by the party
giving the notice and delivered to:
For Consultant: Xxxxxxxx X. Xxxxx
For Kaiser: Xxxxxx Aluminum & Chemical Corporation
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Chairman
Any notice so delivered to the party to whom it is addressed
shall be deemed to have been given and received (i) if by
personal delivery, on the day of such delivery, (ii) if by
certified or registered mail, on the seventh day after mailing
thereof, (iii) if by facsimile, the day on which such facsimile
was sent and a confirmation of successful transmission is
received or (iv) if by next-day or overnight mail delivery, on
the day delivered, provided that if any such day is not a
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business day then the notice shall be deemed to have been given
and received on the business day next following such day.
13. Entire Agreement. This Agreement and the termination
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letter entered into by Consultant and the Company, as amended or
supplemented, contain the entire understanding and agreement
between the parties hereto as to the subject matter hereof, and
supersede all prior or contemporaneous communication, agreements
and understandings between the parties, whether written or oral
with respect to the subject matter hereof and thereof.
14. Amendment. This Agreement can be amended,
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supplemented, or superseded only by an instrument in writing
signed by both of the parties hereto.
15. Severability. If any provision of this Agreement is
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held to be illegal, invalid, or unenforceable under present or
future laws effective during the term hereof, such provision
shall be fully severable and this Agreement and each separate
provision hereof shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised
a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or
by its severance from this Agreement. In addition, in lieu of
such illegal, invalid, or unenforceable provision, there shall be
added automatically as a part of this Agreement a provision as
similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid, and
enforceable.
16. Headings. The headings contained in this Agreement are
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for reference purposes only and shall not affect in any way the
meaning, interpretation, or scope of this Agreement.
17. Successors and Assigns. This Agreement shall inure to
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the benefit of and be binding upon the respective parties hereto,
their permitted respective successors and assigns.
18. Waiver of Default. Any waiver by either party of a
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breach of any provision of this Agreement shall not operate or be
construed as a waiver by such party of any subsequent breach of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
/s/ Xxxxxxxx X. Xxxxx
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XXXXXXXX X. XXXXX
XXXXXX ALUMINUM & CHEMICAL
CORPORATION
by:/s/ Xxxxxx X. Xxxxxxxx,Xx.
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Xxxxxx X. Xxxxxxxx, Xx.
Chairman and Chief
Executive Officer
