Exhibit 10.3
ENHANCED SEVERANCE AGREEMENT
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This Enhanced Severance Agreement (the "Agreement") is
entered into by and between the Xxxxxx Aluminum & Chemical
Corporation, a Delaware corporation (the "Corporation"), and
_________________ ("Executive"), effective ___________, 2000
(the "Effective Date").
WHEREAS, Executive has made, and is expected to continue
to make, major contributions to the short- and long-term
profitability, growth and financial strength of the
Corporation;
WHEREAS, the Corporation continues to pursue strategies
that will result in a stronger and more profitable Corporation
going forward and may lead to acquisitions, divestitures or
other forms of corporate restructuring;
WHEREAS, the Corporation previously made available to key
managers of the Corporation, including Executive, the Enhanced
Severance Protection and Change in Control Benefits Program
("Severance Benefits Program"), in order to ensure that such
managers have appropriate protection in the event of a "Change
in Control" of the Corporation, and to permit them to maintain
their focus on key goals related to the Corporation's
initiatives;
WHEREAS, the Corporation now desires to supercede and
replace the Severance Benefits Program by entering into
separate Enhanced Severance Agreements with certain key
managers, including Executive, and Executive also desires to
enter into this Agreement and to be bound by the terms
thereof:
NOW, THEREFORE, the Corporation and Executive agree as
follows:
1. TERM OF AGREEMENT. This Agreement shall be
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effective as of the Effective Date and shall terminate on
December 31, 2003; provided, however, that if a Change in
Control or Potential Change in Control occurs during the
initial term of the Agreement, the Agreement shall not end
(1)prior to the end of the [_____] month period beginning on the
later of (a) the date of such Change in Control or (b) the
date of a Change in Control which occurs within six (6) months
after such Potential Change in Control.
2. DEFINED TERMS. In addition to terms defined
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elsewhere herein, the following terms have the following
meanings when used in this Agreement with initial capital
letters:
(a) "Base Pay" means the Executive s annual base salary
rate at a rate not less than his or her annual fixed
or base compensation as in effect immediately prior
to termination of employment or, if higher, prior to
the occurrence of a Change in Control or Potential
Change in Control, without reduction for
contributions to any qualified or non-qualified
employee benefit plan or fringe benefit plan.
(b) "Cause" means (1) Executive's gross misconduct or
fraud in the performance of his employment; (2)
Executive's conviction or guilty plea with respect
to any felony (except for motor vehicle violations);
or (3) Executive's material breach of any written
employment agreement between the Corporation and the
Executive, or of the Xxxxxx Aluminum & Chemical
Corporation Code of Business Conduct, or continued
abandonment of his or her employment with the
Corporation, which remains uncorrected, or which
recurs, after written notice delivered to Executive
of such breach or abandonment and a reasonable
opportunity to correct such breach or abandonment.
(c) "Change in Control" means:
(1) The sale, lease, conveyance or other
disposition of all or substantially all of the
Corporation's assets as an entirety or
substantially as an entirety to any person,
entity or group of persons acting in concert
other than in the ordinary course of business;
(2) Any transaction or series of related
transactions (as a result of a tender offer,
merger, consolidation or otherwise) that
results in any Person (as defined in Section
13(h)(8)(E) under the Securities Exchange Act
of 1934) becoming the beneficial owner (as
defined in Rule 13d-3 under the Securities
Exchange Act of 1934), directly or indirectly,
of more than 50% of the aggregate voting power
of all classes of common equity of the
Corporation, except if such Person is (A) a
subsidiary of the Corporation, (B) an employee
stock ownership plan for employees of the
Corporation or (C) a Corporation formed to hold
the Corporation's common equity securities and
whose shareholders constituted, at the time
such Corporation became such holding
Corporation, substantially all the shareholders
of the Corporation; or
(3) A change in the composition of the
Corporation's Board of Directors over a period
of thirty-six (36) consecutive months or less
such that a majority of the then current Board
members ceases to be comprised of individuals
who either (a) have been Board members
continuously since the beginning of such
period, or (b) have been elected or nominated
for election as Board members during such
period by at least a majority of the Board
members described in clause (a) who were still
in office at the time such election or
nomination was approved by the Board.
(d) "Code" means the Internal Revenue Code of 1986, as
amended from time to time. All references to the
Code shall be deemed also to refer to any successor
provisions to such sections.
(e) "Disability" means total and permanent disability as
a result of bodily injury, disease or mental
disorder which results in the Executive's
entitlement to long term disability benefits under
the Xxxxxx Aluminum Self-Insured Welfare Plan or the
Xxxxxx Aluminum Salaried Employees Retirement Plan.
(f) "Good Reason" means:
(1) Demotion, reduction in title, substantial
reduction of position responsibilities, or
substantial change in reporting
responsibilities or reporting level from
the Executive's position immediately prior
to a Change in Control or Potential Change
in Control, or assignment of duties or
responsibilities inconsistent with such
position, which remains uncorrected for
five (5) days after the Executive provides
written notice to the Corporation of such
event, or which recurs after previous
correction;
(2) Failure by the Corporation to obtain a
satisfactory agreement from any successor
to assume and agree to perform this
Agreement;
(3) Relocation of the Executive's primary
office more than fifty (50) miles from the
Executive's current office location,
without the Executive's written consent;
or
(4) Reduction, without the Executive's written
consent, in his or her level of base
compensation (including base salary and
fringe benefits) by more than ten percent
(10%) or a reduction by more than ten
percent (10%) in his or her Short Term
Incentive target.
(g) "Potential Change in Control" means:
(1) The Corporation enters into an agreement,
the consummation of which would result in
the occurrence of a Change in Control;
(2) The Corporation publicly announces an
intention to take or to consider
taking actions which, if consummated,
would constitute a Change in Control;
or
(3) The Board of Directors adopts a resolution
to the effect that, for purposes of this
Agreement, a Potential Change in Control
has occurred.
(h) "Incentive" means an annual or long term bonus,
incentive or other payment of compensation, in
addition to base pay, made or to be made to
Executive in regard to services rendered in any year
pursuant to any bonus, incentive, profit-sharing,
performance, discretionary pay or similar agreement,
policy, plan, program or arrangement (whether or not
funded) of the Corporation, or any successor
thereto, but not including any stock option plan or
program.
(i) "Significant Restructuring" means the sale or other
disposition of one or more business units to which
the Executive provide services and therefore causes
his or her job to be eliminated.
3. SEVERANCE UPON CHANGE IN CONTROL. If the Executive's
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employment is terminated by the Corporation, or
any successor to the Corporation, or the Executive terminates
his or her employment due to Good Reason, within the period
beginning ninety (90) days prior to a Change in Control and
ending on the third anniversary of such Change in Control, the
Executive will be entitled to receive the severance payments
and benefits set forth in Section 6 and 7 below; provided,
however, that no severance payments shall be made, or
continuing benefits provided, under the Agreement, if any of
the following apply:
(a) The Executive voluntarily resigns or retires from
employment other than for Good Reason;
(b) The Executive is terminated for Cause;
(c) The Executive s employment terminates as a result of
death or Disability; or
(d) The Executive declines to sign and return the
Release Agreement set forth in Appendix A hereto or
revokes such Release Agreement within the time
provided therein.
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4. SEVERANCE DUE TO SIGNIFICANT RESTRUCTURING. If the
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Executive's employment is terminated by the Corporation due
to Significant Restructuring, outside of the period beginning
ninety (90) days prior to a Change in Control and ending on
the third anniversary of such Change in Control, the Executive
will be entitled to receive the severance payments and
benefits set forth in Sections 6 and 7 below; provided,
however, that no severance payments shall be made, or
continuing benefits provided, under the Agreement, if any of
the following apply:
(a) An event described in Section 3(a), (b), (c) or (d)
applies; or
(b) The Corporation offers the Executive suitable
employment in a substantially similar capacity as
determined in accordance with Personnel Policy
Committee Guidelines and at his or her current level
of Base Pay and Short Term Incentive, regardless of
whether the Executive accepts or rejects such
employment.
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5. OTHER SEVERANCE. If the Executive's employment is
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terminated by the Corporation other than at a time, or for a
reason, described in Section 3 or 4 above, the Executive will
be entitled to receive the severance payments and benefits set
forth in Sections 6 and 7 below; provided, however, that no
severance payments shall be made, or continuing benefits
provided, under the Agreement, if any of the following apply:
(a) The Executive voluntarily resigns or retires from
employment;
(b) An event described in Section 3(b), (c) or (d)
applies; or
(c) The Corporation offers the Executive suitable
employment as determined in accordance with
Personnel Policy Committee Guidelines, and the
Executive rejects such employment.
6. AMOUNT OF SEVERANCE PAYMENTS. If the Executive's
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employment terminates as described in Section 3, 4 or 5
above, and he or she becomes entitled to severance benefits
under this Agreement, the Corporation, or any successor to the
Corporation, shall pay to the Executive the following amounts
in a single sum cash payment:
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(a) [_____] times the sum of the Executive's Base Pay
and most recent Short Term Incentive target; and
(b) Prorated short and long term Incentive programs in
effect for the year in which the Executive's
termination of employment occurs, determined by
multiplying the Executive's short term Incentive
target for the full current year by a fraction, the
numerator of which is the number of days from
January 1 until the Executive's termination of
employment and the denominator of which is 365 and
by multiplying the Executive's long term Incentive
target for the current long term period by a
fraction, the numerator of which is the number of
days from the inception of the long term program
until the Executive's termination of employment and
the denominator of which is 1,095. Notwithstanding
the foregoing, if the Executive is terminated on
December 31 of any year, he or she will participate
in the actual Incentive programs for the year, based
on applicable performance measure(s), and no
proration shall apply.
7. CONTINUATION OF BENEFITS. If the Executive's
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employment terminates as described in Section 3, 4 or 5 above,
and he or she becomes entitled to severance benefits under
this Agreement, the Corporation, or any successor to the
Corporation, shall provide to the Executive continuation:
(a) of his or her coverage under all medical, dental,
life and accidental death and dismemberment
benefits, as if the Executive had continued in
employment with the Corporation uninterrupted for up
to thirty six (36) months. The Executive must
continue to pay monthly medical and life insurance
contributions (if any) for this coverage to remain
in effect. Notwithstanding the foregoing, coverage
under any cafeteria plan, health care reimbursement
account, dependent care spending account, long term
disability plan or qualified retirement plan will
cease. The Corporation may require the health
benefit continuation period required under the
Congressional Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA") to run concurrently with
the benefit continuation period hereunder.
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(b) of all other existing perquisites, including,
without limitation, the continuation of his or her
company car benefit, for the period of thirty six
(36) months, with the exception of gas
reimbursement. The company reserves the right to
offer a reasonable cash buy-out of the company car
benefit.
8. GROSS-UP FOR TAX PAYMENTS. If any payment or
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distribution by the Corporation or any of its affiliates to or for the
benefit of Executive, whether paid or payable or distributed or
distributable under this Agreement or under any other agreement, policy,
plan, program or arrangement, or the lapse or termination of any
restriction under any agreement, policy, plan, program or arrangement (a
"Payment"), would be subject to the excise tax imposed by Section 4999
of the Code by reason of being considered contingent on a change in
ownership or control of the Corporation, within the meaning of Section
280G of the Code, or to any similar tax imposed by state or local law,
or any interest or penalties with respect to such tax (such tax or
taxes, together with any such interest and penalties, being hereafter
collectively referred to as the "Excise Tax"), then Executive will be
entitled to receive an additional payment or payments (collectively, a
"Gross-Up Payment"). The Gross-Up Payment will be in an amount such
that, after payment by Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any Excise Tax
imposed upon the Gross-Up Payment, Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed on the Payment.
Notwithstanding the foregoing, if no Excise Tax would apply if the
aggregate Payments were reduced by five percent (5%), then the aggregate
Payments shall be reduced by the amount necessary to avoid application
of the Excise Tax, in such manner as the Executive shall direct, and no
Gross-Up Payment will be made. The following provisions shall apply in
determining whether a Gross-Up Payment shall apply:
(a) Unless the Corporation and Executive otherwise agree in
writing, any determination required under this Section 8
shall be made in writing by nationally recognized
independent public accountants, whose determination shall
be conclusive and binding upon Executive and the
Corporation for all purposes. For purposes of making the
calculations required by this Section 8, the Accounting
Firm may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable,
good faith interpretations concerning the application of
Sections 280G and 4999 of the Code. The Corporation and
Executive shall furnish to the Accounting Firm such
information and documents as the Accounting Firm may
reasonably request in order to make a determination
hereunder. The Corporation shall bear all costs the
Accounting Firm may reasonably incur in connection with
any calculations contemplated hereunder. The Accounting
Firm shall be required to provide its determination
within sixty (60) days after the date of the Executive s
termination, and the Corporation shall be responsible for
any income tax, penalty or interest liability incurred as
a result of delay by the Accounting Firm.
(b) If the Accounting Firm determines that no Excise Tax is
payable by Executive, it will, at the same time as it
makes such determination, furnish the Corporation and
Executive an opinion that Executive has substantial
authority not to report any Excise Tax on his or her
federal, state or local income or other tax return. If
the Accounting Firm determines that an Excise Tax will
(or would, but for reduction in the Payment) be payable
by Executive, it will, at the same time as it makes such
determination, furnish the Corporation and Executive the
detailed basis for such opinion. The Corporation will
make the Gross-Up payment within five (5) business days
thereafter.
(c) If the federal, state and local income or other tax
returns filed by Executive are consistent with the
determination of the Accounting Firm under paragraph (b)
above, and the Internal Revenue Service or any other
taxing authority asserts a claim or notice of deficiency
(referred to in this Section 8 as a "claim") against the
Executive that, if successful, would require the payment
by the Corporation of a Gross-Up Payment, the following
shall apply. Executive will not pay such claim prior to
the earlier of (1) the expiration of the thirty (30)
calendar day period following the date on which he or she
gives such notice to the Corporation and (2) the date
that any payment of amount with respect to such claim is
due. If the Corporation notifies Executive in writing
prior to the expiration of such period that it desires to
contest such claim, Executive will:
(i) Provide the Corporation with any written
records or documents in his or her
possession relating to such claim
reasonably requested by the Corporation;
(ii) Take such action in connection with
contesting such claim as the Corporation
shall reasonably request in writing from
time to time, including without limitation
accepting legal representation with
respect to such claim by an attorney
competent in respect of the subject matter
and reasonably selected by the
Corporation;
(iii) Cooperate with the Corporation in good
faith in order effectively to contest such
claim, which may include the payment of an
amount advanced by the Corporation and
assertion of a claim for refund; and
(iv) Permit the Corporation to participate in
any proceedings relating to such claim;
provided, however, that the Corporation will bear
and pay directly all costs and expenses (including
interest and penalties) incurred in connection with
such contest and will indemnify and hold harmless
Executive, on an after-tax basis, for and against
any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result
of such contest and any such payments. If the
Corporation directs Executive to pay the tax
claimed, or otherwise fails to contest the claim as
described above, the Corporation will immediately
pay to Executive the amount of the required
deficiency payment, including any Excise Tax or
income tax, and interest and penalties with respect
thereto.
9. NONCOMPETITION; NONSOLICITATION. For the one year
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period following the termination of employment with the
Corporation, the Executive agrees that he will not, without
the prior written consent of the Corporation, which shall not
unreasonably be withheld, directly or indirectly, whether as a
principal, agent, employee, consultant, contractor, advisor,
representative, stockholder (other than as a holder of an
interest of five percent (5%) or less in the equity of any
corporation whose stock is traded on a public stock exchange),
or in any other capacity:
(a) except in the event where termination results
from a change in control, provide services,
advice or assistance to any business, person or
entity which competes with the Corporation
directly, as a primary focus of its business,
in the United States or in any other location
in which the Corporation operates, in the
manufacture, sale or delivery of any materials,
products or services which constitute more than
twenty percent (20%) of the Corporation's
revenues in the prior twelve month period; or
(b) intentionally entice, induce or solicit, or
attempt to entice, induce or solicit, any
individual or entity having a business
relationship with the Corporation, whether as
an employee, consultant, customer or otherwise,
to terminate or cease such relationship.
By entering into this Agreement, the Executive acknowledges
that these prohibitions are reasonable as to time,
geographical area and scope of activity and do not impose a
restriction greater than is necessary to protect the
Corporation's good will, proprietary information and business
interests.
10. CONFIDENTIALITY. The Executive shall keep secret
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and confidential and shall not disclose to any third party, in
any fashion or for any purpose whatsoever, any information
regarding the Corporation which is (a) not available to the
general public, and/or (b) not generally known outside the
Corporation, to which the Executive has or will have had
access at any time during the course of his or her employment
by the Corporation, including, without limitation, any
information relating to: the Corporation's business or
operations; its plans, strategies, prospects or objectives;
its products, technology, Intellectual Property described in
Section 15, processes or specifications; its research and
development operations or plans; its customers and customer
lists; its manufacturing, distribution, sales, service,
support and marketing practices and operations; its financial
condition and results of operations; its operational strengths
and weaknesses; and, its personnel and compensation policies
and procedures. However, this provision shall not preclude
the Executive from providing truthful information to the
extent required by subpoena, court order, search warrant or
other legal process, provided that the Executive immediately
notifies the Corporation of such request in order to provide
the Corporation an opportunity to object to such request in
the appropriate forum and to obtain a ruling on such
objection.
11. COOPERATION. Upon termination of employment for any
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reason, Executive shall fully cooperate with the Corporation
in all matters relating to the winding up of his or her
pending work on behalf of the Corporation and the orderly
transfer of any such pending work to other employees of the
Corporation as may be designated by the Corporation.
12. ENFORCEMENT. Any claim arising out of or relating
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to this Agreement or the Executive's employment with the
Corporation or the termination thereof, other than an action
for injunctive relief as provided below, shall be resolved by
confidential, final and binding arbitration conducted by
Judicial Arbitration and Mediation Services ("JAMS") to be
held in Houston, Texas, under the then-existing JAMS rules,
rather than by litigation in court, trial by jury,
administrative proceeding, or in any other forum. Judgment
upon the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof. The Corporation shall
promptly pay all costs and expenses, including without
limitation reasonable attorneys fees, incurred by the
Executive or his beneficiaries in resolving any claim
hereunder in which the Executive or his beneficiaries shall
prevail. In all other cases the parties shall bear their own
costs and expenses, except that the Executive shall pay all
costs and expenses, including, without limitation, reasonable
attorney's fees incurred by the Corporation in resolving such
claim if the arbitrator(s) determine such claim to have been
brought by the Executive (a) in bad faith or (b) without any
reasonable basis. Notwithstanding the foregoing, the parties
agree that any breach of Section 9 or 10 above is likely to
cause irreparable injury to the Corporation and that damages
for any breach of Section 9, 10 or 15 are difficult to
calculate. Therefore, upon breach of Section 9, 10 or 15
hereof, the Corporation shall, at its election, be entitled to
injunctive and other equitable relief from a court or such
other relief or remedies, including damages, to which it may
be entitled, and shall not be required to submit the matter to
arbitration.
13. RETURN OF PROPERTY. Upon termination of your
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employment for any reason, you will return to the Corporation
all property belonging to it, including without limitation,
computer equipment, computer programs, cellular telephones,
beepers or other property belonging to the Corporation, and
documents, property and data of any nature and in any form,
including electronic or magnetic form, reflecting any
confidential information described in Section 10 above.
14. DISPARAGEMENT. The Executive agrees not to make any
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derogatory, unfavorable, negative or disparaging statements
concerning the Corporation and its affiliates, officers,
directors, managers, employees or agents, or its and their
business affairs or performance. This provision shall not be
construed to limit the Executive's ability to give
non-malicious and truthful testimony should you be subpoenaed
to do so by competent authority having jurisdiction.
15. INTELLECTUAL PROPERTY. For purposes of this Section
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15, the term "Intellectual Property" means all inventions,
creations, trade secrets, patents (utility or design) and
other intellectual property relating to any programming,
documentation, technology, material, product, service, idea,
process, plan or strategy concerning the business or interests
of the Corporation that the Executive conceives, develops or
delivers to the Corporation, in whole or in part, at any time
during his or her employment with the Corporation, including
without limitation, all copyrights, inventions, discoveries
and improvements, trademarks, designs and all other
intellectual property rights. All such Intellectual Property
shall be considered work made for hire by the Executive and
owned by the Corporation. The Executive agrees to perform,
upon the request of the Corporation, during or after his or
her employment, such acts as may be necessary or desirable to
transfer, perfect and defend the Corporation's ownership and
any resulting registrations of the Intellectual Property.
16. MISCELLANEOUS.
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(a) Waiver. Neither party shall, by mere lapse of
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time, without giving notice or taking other
action hereunder be deemed to have waived any
breach by the other party 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.
(b) Severability. If for any reason a court of
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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.
(c) No Mitigation. Executive shall have no duty to
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mitigate the Corporation's obligation with
respect to the termination payments set forth
herein by seeking other employment following
termination of his or her 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 Corporation's obligations to
make any payments hereunder shall not terminate
in the event Executive accepts other full time
employment.
(d) Notices. All notices and other communications
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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
Corporation at its principal corporate address,
and to Executive at his most recent address
shown on the Corporation's corporate records,
or at any other address which he may specify in
any appropriate notice to the Corporation.
(e) Counterparts. This Agreement may be executed in
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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.
(f) Entire Agreement. The parties hereto
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acknowledge that each has read this Agreement,
understands it, and agrees to be bound by its
terms. The parties further agree that this
Agreement constitutes the complete and
exclusive statement of the agreement between
the parties and supersedes all proposals (oral
or written), understandings, representations,
conditions, covenants, and all other
communications between the parties relating to
the subject matter hereof.
(g) Governing Law. This Agreement shall be
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governed by the law of the State of Texas.
(h) Assignment and Successors. This Agreement will
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be binding upon and inure to the benefit of
the Corporation and any successor to the
Corporation, including without limitation any
persons acquiring directly or indirectly all or
substantially all of the business or assets of
the Corporation whether by purchase, merger,
consolidation, reorganization or otherwise (and
such successor will thereafter be deemed the
"Corporation" for the purposes of this
Agreement), but will not otherwise be
assignable or delegable by the Corporation. The
Corporation will require any such successor, by
agreement in form and substance identical
hereto, expressly to assume and agree to
perform this Agreement in the same manner and
to the same extent the Corporation would be
required to perform if no such succession had
taken place. This Agreement will inure to the
benefit of and be enforceable by, if then
applicable, Executive's personal or legal
representatives, executors, administrators,
successors, heirs, distributees and legatees,
but shall not otherwise be assignable the
Executive, whether by pledge, creation of a
security interest or otherwise.
(i) No Employment Rights. Nothing expressed or
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implied in this Agreement will create any
right or duty on the part of the Corporation or
Executive to have Executive remain in the
employment of the Corporation prior to or
following a Change in Control.
(j) Withholding. Any payments provided for
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hereunder shall be paid net of any applicable
withholding required under federal, state or
local law and any additional withholding to
which the Executive has agreed.
(k) Amendment. This Agreement may not be amended
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other than by written agreement of the
Corporation and the Executive.
17. IMPACT ON OTHER AGREEMENTS. This Agreement
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supercedes and replaces the Severance Benefits Program.
Severance payments under this Agreement shall be in lieu of
any severance or other termination payments provided under any
other agreement between the Executive and the Corporation;
provided, however, that if any provision of this Agreement
conflicts with a provision of a written employment agreement
between the Executive and the Corporation, the provision more
favorable to the Executive shall govern.
IN WITNESS WHEREOF, the parties have executed this
Agreement on the date first above written.
Xxxxxx Aluminum & Chemical Corporation
By:
_____________________, Executive
By:
ANNEX A
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FORM OF RELEASE
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WHEREAS, _________________ ("Executive") has previously
entered into an Enhanced Severance Agreement (the "Agreement")
by and between the Executive and the Xxxxxx Aluminum &
Chemical Corporation, a Delaware corporation (the
"Corporation'), effective October __, 2000 (the "Effective
Date"); and
WHEREAS, Executive's employment with the Corporation has
terminated under circumstances in which enhanced severance
benefits may be paid to the Executive provided that he execute
and return this release of claims to the Corporation; and
WHEREAS, Executive desires to sign and be bound by this
Release in order to obtain certain benefits under the
Agreement:
NOW THEREFORE, Executive agrees as follows:
1. This Release is effective as of the date of
termination of the Executive's employment with the Corporation
and will continue in effect as provided herein.
2. In consideration of the payments to be made to
Executive pursuant to the Agreement, which Executive
acknowledges are in addition to payments to which Executive
would be entitled to receive absent the Agreement, Executive,
for himself or herself and his or her dependents, successors,
assigns, heirs, executors and administrators (and his or her
and their legal representatives of every kind), hereby
releases and forever discharges the Corporation, its
predecessors, parents, subsidiaries, divisions, related or
affiliated companies, officers, directors, members, employees,
heirs, successors, assigns, representatives, agents and
counsel (collectively, "Kaiser") from any and all
arbitrations, claims, including claims for attorney s fees and
charges, demands, damages, suits, proceedings, actions and/or
causes of action of any kind and every description, whether
known or unknown, which Executive now has or may have had for,
upon, or by reason of any of the following:
(a) any and all claims of discrimination, including
without limitation claims of discrimination on
the basis of sex, race, age, national origin,
marital status, religion or handicap,
including, specifically, but without limiting
the generality of the foregoing, any claims
under the Age Discrimination in Employment Act,
as amended, Title VII of the Civil Rights Act
of 1964, as amended, and the Americans with
Disabilities Act; and
(b) any and all claims of wrongful or unjust
discharge or breach of any contract or promise,
express or implied.
The foregoing release does not apply to rights under the
Agreement or any employee benefit plan of Kaiser.
3. Executive understands and acknowledges that Kaiser
does not admit any violation of law, liability or
contravention of any of his or her rights and that any
such violation, laibility or contravention is expressly
denied. The consideration provided for this Release is
is made for the purpose of settling and extinguishing
all claims and rights ( and every other similar or
dissimilar matter) that Executive ever had or now
may have against Kaiser to the extent provided
in Paragraph 2 of this Release. Executive further agrees
and acknowledges that no representations, promises or
inducements have been made by Kaiser other than as appear
in the Agreement.
4. Executive further agrees and acknowledges that:
(a) The release provided for herein releases claims
and rights to the extent provided in Paragraph
2 of the Release up to and including the date
of this Release;
(b) He or she has been advised by Kaiser to consult
with legal counsel prior to executing this
Release, has had an opportunity to consult with
and to be advised by legal counsel of his or
her choice, fully understands the terms of this
Release and enters into this Release freely,
voluntarily and intending to be bound;
(c) He or she has had a period of not less than
twenty-one (21) calendar days to review and
consider the terms of this Release prior to its
execution; and
(d) He or she may, within seven (7) calendar days
after execution, revoke this Release.
Revocation will be made by delivering a written
notice of revocation to the Chief Legal Officer
of Kaiser. For such revocation to be effective,
written notice must be actually received by
Kaiser no later than the close of business on
the seventh calendar day after Executive
executes this Release. If Executive exercises
his or her right to revoke this Release, all of
the terms and conditions of the Release will be
of no force and effect and Kaiser will not have
any obligation to make payments or provide
benefits to Executive as set forth in the
Agreement.
5. Executive agrees that he or she will never file
a lawsuit or other complaint asserting any claim
that is released in Paragraph 2 of this Release.
6. Executive waives and releases any claim that he
or she has or may have to reemployment.
IN WITNESS WHEREOF, Executive has duly executed and
delivered this Release on the date set forth below.
Xxxxxx Aluminum & Chemical Corporation
By:
_____________________, Executive
By:
----------
1. For Executives who are named executive officers , as defined
in Item 402(a)(3) of Regulation S-K under the Securities Exchange
Act of 1934, and for certain other executive officers, the period
is thirty-six (36) months. For other Executives who are not
"named executive officers", the period is twenty-four (24) months
or twelve (12) months.
2. Section 4 will be included in Agreements with Executives who
are "named executive officers" and with certain other executive
officers.
3. Section 5 will be included in Agreements with Executives who
are "named executive officers" and with certain other executive
officers.
4. For Executives who are "named executive officers" and for
certain other executive officers, the multiplier is three (3).
For other Executives who are not "named executive officers", the
multiplier is two (2) or one (1).
5. Section 7(b) will be included in Agreements with Executives
who are "named executive officers" and with certain other
executive officers.
