CONSULTING AGREEMENT
THIS AGREEMENT is made as of the 19th day of November, 1993, by and
between Kaiser Aluminum & Chemical Corporation, a Delaware corporation
(the "Company"), and A. Stephens Hutchcraft, Jr. (the "Consultant").
In consideration of the mutual promises contained in this
Agreement, the Company and Consultant hereby agree as follows:
1. TERM
The term of this Consulting Agreement shall commence on
January 1, 1994, and shall continue through December 31, 1994;
provided, however, that the term of this Agreement may be extended for
additional one-year periods, or such shorter periods as the parties
hereto may agree upon, in the event that the parties hereto mutually
agree, in writing, to any such extension prior to the expiration of
the term hereof.
2. CONSULTATION SERVICES
(a) The Company hereby contracts for the services of
Consultant and the Consultant hereby agrees to advise and consult with
the Company and certain of its affiliates in such positions and
activities as the President and Chief Executive Officer of the Company
shall direct. Consultant shall provide consulting services to the
Company hereunder during such times and at such place or places as
shall be mutually agreed upon by the Company and Consultant.
(b) As an independent contractor, Consultant agrees to
provide such consulting advice and assistance to the Company during an
average fifty percent (50%) of the customary business hours in any
given month during the term of this Agreement.
(c) Consultant shall have the right to designate periods of
time during which he will be unavailable (such as periods of vacation
and for other desired absences), provided Consultant has informed the
President and Chief Executive Officer of the Company in advance of any
periods during which he will be unavailable for more than two
consecutive weeks.
(d) In the event Consultant is temporarily unable by reason
of disability to perform consulting services, such performance shall
be excused during such period of disability, provided that
Consultant's physician advises the Company that the Consultant's
recovery is likely to occur within the remaining term of this
Consulting Agreement.
(e) To the extent consistent with Section 2(f) and Section
5 hereof, Consultant shall be free to engage in business activity of
his choice when not providing consulting services to the Company
hereunder.
(f) Consultant acknowledges receipt of a copy and agrees
during the term hereof to comply with the terms and conditions of the
MAXXAM Inc. "Code of Business Conduct" insofar as said Code applies to
Consultant providing services to the Company and certain of its
affiliates.
3. COMPENSATION
(a) During the term of this Agreement, the Company shall
pay to Consultant for the services rendered by Consultant a total fee
of $225,000, payable in installments of $9,375.00 on the 15th and on
the final day of each month.
(b) The Company shall reimburse Consultant for all
reasonable out-of-pocket business expenses incurred by him relating to
consulting services provided by Consultant under this Consulting
Agreement. Consultant shall furnish such evidence or documentation to
support his requests for reimbursement of expenses as is customarily
provided by executives of the Company in connection with reimbursement
of expenses.
(c) The Company shall provide Consultant with an office,
secretarial services and an automobile of such make and model as shall
be agreed upon between the Company and Consultant, including costs of
fuel and maintenance, and the Company shall also provide credit cards
for payment of expenses that are otherwise reimbursable under this
Agreement.
4. INDEPENDENT CONTRACTOR STATUS
(a) The Consultant shall act in the capacity of an
independent contractor with respect to the Company. The Consultant
shall not be, nor represent himself as being, an agent of the Company,
and he shall not be, nor represent himself as being, authorized to
bind the Company.
(b) Nothing contained herein shall be deemed to create an
employer/employee relationship between the Company and Consultant, and
in all respects Consultant shall be an independent
contractor with respect to all of his activities on behalf of the
Company hereunder. The Company shall not treat Consultant as an
employee for purposes of employment taxes, income tax withholding or
employee benefits. Consultant acknowledges that he is responsible for
payment of all Federal and State self-employment and income taxes.
(c) consultant understand that no employee benefits
provided by the Company for its employees, including, but not limited
to the Kaiser Retirement Plan, Plan B, Severance Pay, Life Insurance
and Medical or Dental insurance, unemployment insurance, compensation
for holidays or illness, pension benefits, or health and welfare
benefits shall be available to Consultant as a result of his services
under this Agreement. However, nothing herein shall affect benefits
accrued or to which Consultant is otherwise entitled by virtue of his
prior employment by the Company.
5. NON-COMPETITION
Throughout the term hereof, the Consultant shall not,
directly or indirectly, engage in any business or activity in which
the Company is engaged ("Competitive Business") nor be employed by,
render services of any kind to, advise or receive compensation in any
form from, any entity or person which directly or indirectly engages
in a Competitive Business without first advising the Company in
writing of the nature of the services contemplated and the party for
whom they are to be performed.
6. INDEMNIFICATION
The Company shall indemnify and hold harmless Consultant
from and against any and all expenses, costs, or liabilities
(including court costs and reasonable attorneys' fees) actually
incurred by Consultant arising out of any threatened, pending or
completed action, suit or proceeding whether civil, criminal,
administrative or investigative by reason of the performance of
consulting services by Consultant under this Agreement, except to the
extent that (a) such liabilities were caused by Consultant's gross
negligence or bad faith, or (b) such indemnification is prohibited by
law, whether by statute, court decision or otherwise.
7. PROTECTION OF PROPRIETARY AND CONFIDENTIAL INFORMATION
(a) All analyses, reports, photographs, data and other
information prepared by Consultant in connection with this Agreement
or disclosed to Consultant by or on behalf of the Company in
connection with the services hereunder shall, as between Consultant
and the Company, become or remain as the case may be, the property of
the Company; and, except as authorized in writing, no such information
shall be disclosed by Consultant to any other person, firm or
corporation or be used by Consultant for any other purpose than the
performance of the services hereunder. All such material shall be
delivered to the Company by Consultant upon request.
(b) The Consultant shall not at any time, either during the
term of this Agreement or thereafter, directly or indirectly use,
disseminate or disclose to any person or entity any information,
trade secrets, customer lists or other customer information, technical
data or know-how relating to the products, developments, inventions,
services, processes, methods, designs, equipment or business practices
of the Company, whether acquired in the performance of services under
this Agreement or in any other capacity.
8. SUCCESSORS AND ASSIGNS
This Agreement shall not be assigned by either party without
the prior written consent of the other party, except that the Company
may, without consent, assign this agreement to any successor to all or
substantially all of the assets of the Company. Except as so limited,
this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives,
successors and assigns. Nothing herein expressed or implied is
intended to confer upon any person, other than the parties hereto or
their respective successors, assigns, heirs or legal representatives,
any rights, remedies, obligations, or any liabilities under or by
reason of this Agreement.
9. AMENDMENTS
This Agreement may be changed, amended or modified only by
an agreement in writing signed by each of the parties.
10. TERMINATION
This Agreement may be terminated by the Company prior to its
expiration date for cause should Consultant be convicted of any crime
involving moral turpitude.
11. NOTICES
All notices provided for in this Agreement shall be sent to
the parties addressed as follows:
TO THE COMPANY: Kaiser Aluminum & Chemical Corporation
Attention: Anthony R. Pierno
5847 San Felipe, Suite 2600
Houston, Texas 77057
TO CONSULTANT: A. Stephens Hutchcraft, Jr.
15 Hillside Drive
Danville, California 94526
All notices shall be deemed to have been given when personally
delivered or five (5) days after being sent by certified or registered
first-class mail, return receipt requested, postage prepaid and
properly addressed to the designated address of the party to whom the
notice is directed.
12. WAIVER OF BREACH
The waiver by any party of any breach by the other party of
any term or condition of this Agreement shall not be deemed to
constitute the waiver by such first party of any other breach by the
other party of the same or any other term or condition.
13. ARBITRATION OF DISPUTES
Any dispute under this Agreement shall be resolved by
binding arbitration in San Francisco, California, pursuant to the
rules of the American Arbitration Association in effect at the time of
the arbitration or such other rules as to which the parties may
mutually agree.
14. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
15. ENTIRE AGREEMENT: SURVIVAL OF OBLIGATIONS
This Agreement, as to the matters herein set forth,
supersedes any contrary or inconsistent provisions of any prior
agreement between Consultant and the Company. The parties acknowledge
that the Consultant's employment agreement with the Company dated
October 1, 1992, is for a term ending on December 31, 1993, and that
Consultant will thereupon be retiring from his long term employment
with the Company. This Agreement contains the entire agreement
between the parties concerning the subject matters herein set forth
and supersedes all prior agreements and understandings concerning
such subject matters. The obligations of Consultant under paragraph 7
shall survive the expiration or termination of this Agreement, and
nothing herein contained shall limit or impair Consultant's rights
under the aforesaid employment agreement including but not limited to
his right thereunder to any amounts payable after the conclusion of
the term of that agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of November 19, 1993. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which shall together constitute one and the same Agreement for all
purposes.
KAISER ALUMINUM & CHEMICAL CORPORATION
By:
CONSULTANT
A. Stephens Hutchcraft, Jr.