Exhibit 10.12
November 4, 2002
Xx. Xxxxxx X. Xxxxxxxx, Xx.
Xxxxxx Aluminum & Chemical Corporation
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Re: Non-Executive Chairman of the Boards Agreement
Dear Xxxxxx:
On behalf of the Boards of Directors (the "Boards") of Xxxxxx Aluminum
Corporation ("KAC") and Xxxxxx Aluminum & Chemical Corporation ("KACC") this
letter agreement confirms the terms of our offer to you to continue as the
non-executive Chairman of the Boards of KAC and KACC.
The terms of our offer are as follows:
1. POSITION: The Boards offer to, and upon your acceptance of this
agreement do hereby, continue your engagement in the position of non-executive
Chairman of the Boards of KAC and KACC. Including your duties as a Director of
the Boards, you are committed to make available up to an average of sixteen (16)
hours each calendar month for devotion to the affairs of KAC and KACC as
directed by the Chief Executive Officer or by the Boards, with particular focus
on assisting with development and implementation of the strategic plan and plan
of reorganization for KAC and KACC.
2. TERM: The term of this agreement is for the period January 1, 2003,
through December 31, 2003. The parties have no obligation to renew this
agreement at the end of the term. This agreement may be terminated earlier (i)
at the sole discretion of the Boards, (ii) by your death or disability (as
defined in KAC's Long Term Disability Plan that covers executives and directors
of KAC, (iii) for cause (as defined below), (iv) the mutual agreement of the
parties hereto, or (v) by you, with sixty days notice to the Boards unless
shorter notice is agreed in the sole discretion of the Boards.
For purposes of this letter agreement, the term "cause" shall mean:
(a) Your conviction for, or plea of nolo contendere to, a felony;
or
(b) Your commission of an act involving fraud or intentional
dishonesty, which act is intended to result in substantial
personal enrichment at the expense of KAC or any of its
subsidiaries; or
(c) Your breach of any material provision of this letter agreement
which remains uncorrected for 30 days after written notice
from the Boards or the Chief Executive Officer and an
opportunity to correct; or
(d) Your knowing and willful misconduct in the performance of your
duties, which continues for 30 days after written notice from
the Boards or the Chief Executive Officer and which results in
material injury to the reputation, business or operation of
KAC or any of its subsidiaries.
The existence of "cause" shall be determined by an affirmative vote of not less
than two-thirds of the members of each of the Boards. If the requisite
affirmative vote by two-thirds of the members of each of the Boards is not
obtained, this letter agreement may not be terminated for cause.
3. COMPENSATION:
(a) Your annual base compensation as a Director of $50,000 shall
continue unmodified. Some or all of such compensation may be
deferred at your option into a "phantom stock" and/or
interest-bearing account to the same extent as other Directors
of KAC and KACC are permitted an election to do so pursuant to
the Deferred Fee Agreement. Amounts which otherwise would be
payable to you during the term of this letter agreement under
KAC's and KACC's Directors' compensation policies for
attendance at meetings of the Boards and committees thereof
and for service as Chairman or a member of such committees
shall be deemed to be included in the compensation payable
under Paragraph 3.(b) of this letter agreement.
(b) Your base compensation for services as non-executive Chairman
of both Boards will be computed at the rate of $73,000 per
year, which shall be payable in cash, quarterly in arrears, in
the first week of the first month following the completion of
each calendar quarter in which such compensation is earned.
The amount earned each quarter is $18,250.00.
You shall be solely liable and responsible for complying with all laws,
rules and regulations regarding timely payment of applicable taxes including,
without limitation, federal and state income, self-employment and/or disability
taxes that may apply to such compensation.
4. INDEPENDENT CONTRACTOR: The relationship between the parties shall
be that of independent contracting parties and shall not constitute or be deemed
for any purpose to be that of employer and employee. The Boards and KAC and KACC
expressly acknowledge and agree that neither shall have the right to direct you
with respect to the means or manner in which you fulfill your obligations and
responsibilities under his letter agreement. The Boards and KAC and KACC are
solely interested in the results obtained by you in connection with your
performance of services required hereunder.
5. TERMINATION: Although your engagement as non-executive Chairman of
the Boards is terminable at the sole discretion of the Boards, if your
engagement as non-executive Chairman of the Boards is terminated by KAC and KACC
without cause (as defined above), you will continue to receive the compensation
specified under Paragraph 3.(b) of this agreement for the balance of the term of
the agreement. However, if your engagement as non-executive Chairman of the
Boards is terminated for cause (as defined above) then you will have no right to
any compensation under Paragraph 3.(b) of this agreement with respect to any
period of time after the date of such termination. You will continue to receive
the fees paid for service as a Director of KAC and KACC so long as you remain
such a Director.
6. AMENDMENT; BENEFIT: This letter agreement may not be amended,
modified, or supplemented in any respect except by a subsequent written
agreement between all of the parties hereto. This letter agreement shall be
binding upon, and shall inure to the benefit of, KAC and its successors and
assigns, KACC and its successors and assigns, and you and your heirs, executors,
administrators, and personal representatives.
7. GOVERNING LAW: This letter agreement shall be governed and construed
in accordance with the laws of the State of Texas, without regard to principles
of choice of law.
Xxxxxx, the Boards are very pleased that you are willing to continue
the duties of non-executive Chairman of the Boards. We look forward to
continuing to work with you.
If the terms of this offer are acceptable, please sign in the space
provided below and return this letter agreement to me.
Very truly yours,
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
Senior Vice President and
Chief Administrative Officer
The foregoing is agreed to and accepted
effective as of November 4, 2002
/s/ Xxxxxx X. Xxxxxxxx, Xx.
Xxxxxx X. Xxxxxxxx, Xx.
