_
EXHIBIT 10.1
AMENDED EMPLOYMENT AGREEMENT
This Amended Agreement (the "AGREEMENT") is made effective for the period
from October 1, 2004 through the earlier of the Company's emergence from
bankruptcy, an agreed termination between the Company and Executive, and June
30, 2005, (such term being hereinafter referred to as the "EMPLOYMENT PERIOD"),
between Xxxxxx Aluminum & Chemical Corporation, a Delaware corporation (the
"COMPANY"), and Xxxxxx X. Xxxxx (the "EXECUTIVE").
WHEREAS, the Company desires to secure the services of Executive as Vice
President, Secretary, General Counsel and Chief Restructuring Officer of the
Company, and Executive desires to perform such services for the Company, on the
terms and conditions as set forth herein;
NOW THEREFORE, in consideration of the premises and of the covenants and
agreements set forth below, it is mutually agreed as follows:
1. Effective Date, Term and Duties. The term of employment of Executive by
the Company hereunder shall be as described above (the "Employment
Period") unless earlier terminated pursuant to Section 4.
1.1. Executive shall have such duties as the Company may from time to
time prescribe consistent with his position as Vice President,
Secretary, General Counsel and Chief Restructuring Officer (the
"SERVICES").
1.2. Executive shall report directly to the Chief Executive Officer of
the Company.
1.3. Executive shall devote his full time, attention, energies and best
efforts to the business of the Company.
1.4. The Company shall maintain an office for Executive in Houston,
Texas.
2. Compensation. The Company shall pay and Executive shall accept as full
consideration for the Services compensation consisting of the following:
2.1. Base Salary. Effective October 1, 2004, $400,000 per year base
salary, payable in installments in accordance with the Company's
normal payroll practices, less such deductions or withholdings
required by law.
2.2. Annual Bonus. A guaranteed annual cash bonus of $125,000, pro-rated
for any partial years. The guaranteed bonus is semi-monthly.
2.3. Long-Term Compensation. Payable in accordance with the Long Term
Incentive Plan approved by the Bankruptcy Court in connection with
the Company's chapter 11 proceedings ("LTI Plan").
3. Benefits and other Perquisites during Employment Period. Executive will be
eligible to participate in the Company's employee benefit plans of general
application, including, without limitation, those plans covering pension,
401(k) savings, medical, disability, sick leave and life insurance in
accordance with the rules established for individual participation in any
such plan and under applicable law. Executive will be
1
eligible for vacation as follows: 20 days per year unless Company vacation
policy is greater. Executive will receive the following other perquisites:
Company car or equivalent cash allowance; wireless telephone and PDA
equipment and service; laptop computer for business and personal use;
business class accommodations for overseas flights; reimbursement for
monthly club membership dues; reserved parking space and payment of
parking costs. Executive will receive such other benefits as the Company
generally provides to other employees of comparable position and
experience.
4. Benefits Upon Termination. If Executive's employment is terminated during
the Employment Period then Executive will be entitled to receive all
payments and benefits prescribed under the Company's Key Employee
Retention Plan effective September 3, 2002 ("KERP"), Severance Plan
effective September 3, 2002 ("Severance Plan"), Change in Control
Severance Agreement dated November 18, 2002 ("CIC Agreement), and the LTI
Plan, as applicable, plus up to $25,000 in relocation expenses. These
payments and benefits will be in lieu of any other severance or
termination payment or benefits provided in Company's policies.
4.1. Termination by Reason of Death or Disability. The Executive's
employment shall terminate automatically upon Executive's death
during the Employment Period. In the event of Executive's death or
disability (see below) during the Employment Period, the Company
shall pay to Executive or Executive's estate any base salary,
pro-rated guaranteed bonus and unpaid vacation accrued as of the
date of Executive's death or disability and any other benefits
payable under the Company's then existing benefit plans and policies
in accordance with such plans and policies in effect on the date of
death or disability an in accordance with applicable law, including
but not limited to those payments and benefits available to
Executive under the KERP, the Severance Plan, the CIC Agreement and
the Change in Control Severance Agreement dated November 18, 2003
and the LTI Plan, as applicable. In the event that during the term
of this Agreement, Executive is unable to perform his job due to
disability (as determined under the Company's long-term disability
insurance program) for 6 months in any 12 month period, the Company
may, at its discretion, terminate Executive's employment with the
Company and Executive shall be entitled to receive the benefits set
forth in this section 4.2.
5. Change in Control. Change in Control payments and benefits shall be
payable and made available in accordance with the CIC Agreement.
6. Dispute Resolution. The Company and Executive agree that any dispute
regarding the interpretation or enforcement of this Agreement shall be
decided by a confidential, final and binding arbitration conducted by
Judicial Arbitration and Mediation Services ("JAMS") under the then
existing JAMS rules, rather than by litigation in court, trial by jury,
administrative proceeding or in any other forum.
7. Cooperation with the Company After Termination of the Employment Period.
Following termination of the Employment Period by Executive, Executive
shall fully cooperate with the Company in all matters relating
2
to the winding up of his pending work on behalf of the Company and the
orderly transfer of any such pending work to other employees of the
Company as may be designated by the Company.
8. Confidentiality; Return of Property. Executive acknowledges that the
Employee Invention and Confidential Information Agreement executed by
Executive, attached hereto as Exhibit A shall continue in effect.
9. General
9.1. Waiver. Neither party shall, by mere lapse of time, without giving
notice or taking action hereunder, be deemed to have waived any
breach by the other of any of the provisions of this Agreement.
Further, the waiver by either party of a particular breach of this
Agreement by the other shall neither be construed as, nor
constitute, a continuing waiver of such breach or of other breaches
by the same or any other provision of this Agreement.
9.2. Severability. If for any reason a court of competent jurisdiction or
arbitrator finds any provision of this Agreement to be
unenforceable, the provision shall be deemed amended as necessary to
conform to applicable laws or regulations, or if it cannot be so
amended without materially altering the intention of the parties,
the remainder of the Agreement shall continue in full force and
effect as if the offending provision were not contained herein.
9.3. No Mitigation. Executive shall have no duty to mitigate the
Company's obligation with respect to the termination payments set
forth in Sections 4 and 5 by seeking other employment following a
termination of his employment, nor shall such termination payments
be subject to offset or reductions by reason of any compensation
received by Executive from such other employment. The Company's
obligations to make payments under sections 4 or 5 shall not
terminate in the event Executive accepts other full-time employment.
9.4. Notices. All notices and other communications required or permitted
to be given under this Agreement shall be in writing and shall be
considered effective upon personal service or upon depositing such
notice in the U.S. Mail, postage prepaid, return receipt requested
and addressed to the Chairman of the Board of the Company at its
principal corporate address, and to Executive at his most recent
address shown on the Company's corporate records, or at any other
address which he may specify in any appropriate notice to the
Company.
9.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which taken together constitutes one and the same instrument and in
making proof hereof it shall not be necessary to produce or account
for more than one such counterpart.
9.6. Entire Agreement. The parties hereto acknowledge that each has read
this Agreement, understands it, and agrees to be bound by its terms.
The parties further agree that this Agreement (combined with the
KERP, Severance Plan, CIC Agreement and LTI Plan, as those
agreements have been made applicable to Executive in the individual
agreements executed by Executive) constitute the complete and
exclusive
3
statement of the agreement between the parties and supercede all
proposals (oral or written), understandings, representations,
conditions, covenants and all other communications between the
parties relating to the subject matter hereof.
9.7. Governing Law. This Agreement shall be governed by the Law of the
State of Texas.
9.8. Assignment and Successors. The Company shall not assign its rights
and obligations under this Agreement without the express advance
approval of Executive; provided, however, that nothing herein shall
prohibit an assignment by the Company of its rights and obligations
pursuant to the terms of the KERP, Severance Plan, CIC Agreement
and/or LTI Plan. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the Company.
9.9. The person executing this Agreement on behalf of the Company
warrants and represents his/her authority to execute this Agreement
and bind the Company, its successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
XXXXXX ALUMINUM & CHEMICAL CORPORATION EXECUTIVE
By: /s/Xxxx Xxxxxxxx By:/s/Xxxxxx X. Xxxxx
-------------------------- --------------------
Xxxxxx X. Xxxxx
4
