SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
(Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to (S)240.14a-11(c) or
(S)240.14a-12
MAXXAM Inc.
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(Name of Registrant as Specified In Its Charter)
MAXXAM Inc.
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(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (check the appropriate box):
[X] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or
14a-6(j)(2).
[ ] $500 per each party to the controversy pursuant to Exchange
Act Rule 14a-6(i)(3).
[ ] Fee computed on table below per Exchange Act Rules
14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction
applies:
2) Aggregate number of securities to which transaction
applies:
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11:*
4) Proposed maximum aggregate value of transaction:
* Set forth the amount on which the filing is calculated
and state how it was determined.
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for
which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
1) Amount previously paid:
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Notes:
April , 1994
To Our Stockholders:
You are cordially invited to attend the Annual Meeting of
Stockholders (the "Annual Meeting") of MAXXAM Inc. to be held at
10:00 a.m. on Wednesday, May 25, 1994, at the Westchase Hilton
Hotel, 9999 Westheimer Road, Houston, Texas.
Although you may presently plan to attend the Annual
Meeting, we urge you to indicate your approval in the spaces
provided on the enclosed proxy card by voting "FOR" the election
of the directors named in the attached proxy statement and "FOR"
the proposals to approve the MAXXAM 1994 Omnibus Employee
Incentive Plan, the MAXXAM 1994 Non Employee Director Plan and
the MAXXAM 1994 Executive Bonus Plan described herein. Please
then date, sign and promptly return the proxy card in the
enclosed envelope. If you are a stockholder of record and attend
the Annual Meeting, as we hope you will, you may vote in person
even if you have previously mailed a proxy card.
We look forward to seeing as many of you as possible at the
Annual Meeting.
CHARLES E. HURWITZ
Chairman of the Board,
Chief Executive Officer
and President
MAXXAM INC.
5847 SAN FELIPE, SUITE 2600
HOUSTON, TEXAS 77057
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held May 25, 1994
The Annual Meeting of Stockholders (the "Annual
Meeting") of MAXXAM Inc. (the "Company") will be held at the
Westchase Hilton Hotel, 9999 Westheimer Road, Houston, Texas, on
Wednesday, May 25, 1994, at 10:00 a.m., local time, for the
following purposes:
1. To elect two (2) directors to serve on the
Board of Directors of the Company, one of which will be elected
by the holders of Common Stock, voting separately as a class, and
will hold office until the 1995 Annual Meeting of Stockholders or
until his successor is elected and qualified, and one of which
will be elected by the holders of Common Stock and Class A $.05
Non-Cumulative Participating Convertible Preferred Stock, voting
together as a single class, and will hold office until the 1997
Annual Meeting of Stockholders or until his successor is elected
and qualified; and
2. To consider and vote upon a proposal to approve the
MAXXAM 1994 Omnibus Employee Incentive Plan;
3. To consider and vote upon a proposal to approve the
MAXXAM 1994 Non Employee Director Plan;
4. To consider and vote upon a proposal to approve the
MAXXAM 1994 Executive Bonus Plan; and
5. To transact such other business as may
properly be presented to the Annual Meeting or any adjournments
thereof.
Stockholders of record as of the close of business on
March 31, 1994 are entitled to notice of and to vote at the
Annual Meeting. A list of stockholders will be available
commencing May , 1994, and may be inspected for purposes
germane to the Annual Meeting during normal business hours prior
to the Annual Meeting at the offices of the Company, 5847 San
Felipe, Suite 2600, Houston, Texas.
By Order of the Board of Directors
BYRON L. WADE
Secretary
April , 1994
IMPORTANT
PLEASE COMPLETE, DATE AND SIGN THE ENCLOSED PROXY CARD AND
RETURN IT PROMPTLY IN THE ENCLOSED ENVELOPE PROVIDED FOR YOUR
CONVENIENCE AND WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED
STATES. THE PROMPT RETURN OF PROXIES WILL ENSURE A QUORUM AND
SAVE THE COMPANY THE EXPENSE OF FURTHER SOLICITATION. ANY
STOCKHOLDER PRESENT AT THE MEETING MAY VOTE PERSONALLY ON ALL
MATTERS BROUGHT BEFORE THE MEETING AND, IN THAT EVENT, HIS OR HER
PROXY WILL NOT BE USED.
MAXXAM INC.
5847 SAN FELIPE, SUITE 2600
HOUSTON, TEXAS 77057
PROXY STATEMENT
for
ANNUAL MEETING OF STOCKHOLDERS
To Be Held May 25, 1994
This proxy statement is furnished to stockholders in
connection with the solicitation by the Board of Directors of
MAXXAM Inc. (the "Company"), a Delaware corporation, of proxies
for use at the Annual Meeting of Stockholders (the "Annual
Meeting") to be held on Wednesday, May 25, 1994, and any
adjournments thereof, at the time and place and for the purposes
set forth in the accompanying notice. This proxy statement, the
proxy and the Company's 1993 Annual Report to Stockholders
included herewith are being mailed to stockholders of record as
of the close of business on March 31, 1994 (the "Record Date"),
commencing on or about April , 1994. The Company's 1993
Annual Report is not a part of this proxy statement nor of the
proxy solicitation materials.
We cordially invite you to attend the Annual Meeting.
Whether or not you plan to attend, please complete, date, sign
and promptly return your proxy in the enclosed envelope. You may
revoke your proxy at any time prior to its exercise at the Annual
Meeting by notice to the Company's Secretary, by filing a later
dated proxy or, if you attend the Annual Meeting, by voting your
shares of stock in person. Proxies will be voted in accordance
with the directions specified thereon or, in the absence of
instructions, FOR the election of the nominees named herein to
the Board of Directors and "FOR" the proposals to approve the
MAXXAM 1994 Omnibus Employee Incentive Plan, the MAXXAM 1994
Non Employee Director Plan and the MAXXAM 1994 Executive Bonus
Plan, as described herein.
Only holders of record of the 8,698,464 shares of
Common Stock (the "Common Stock") and the 678,239 shares of Class
A $.05 Non-Cumulative Participating Convertible Preferred Stock
("Class A Preferred Stock") of the Company outstanding as of the
Record Date are entitled to vote at the Annual Meeting. Each
share of Common Stock is entitled to one vote and each share of
Class A Preferred Stock is entitled to ten votes on each matter
to be voted upon, except that the holders of Common Stock, voting
separately as a class, will be entitled to elect one member of
the Company's Board of Directors. A plurality of the votes
present, in person or by proxy, is necessary for the election of
directors. Under applicable Delaware law, abstentions and broker
non-votes will have no effect on the outcome of election of
directors. Abstentions and broker non-votes are counted for
purposes of determining the presence or absence of a quorum for
the transaction of business.
ELECTION OF DIRECTORS
The Company's Restated Certificate of Incorporation
currently provides for three classes of directors having
staggered terms of office, with directors of each class to be
elected by the holders of the Company's Common Stock and Class A
Preferred Stock, voting together as a single class, for terms of
three years and until their respective successors have been duly
elected and qualified. The Company's Restated Certificate of
Incorporation also provides that so long as any shares of the
Class A Preferred Stock are outstanding, the holders of Common
Stock, voting as a class separately from the holders of any other
class or series of stock, shall be entitled to elect, for terms
of one year, at each annual meeting, the greater of (i) two
directors, or (ii) that number of directors which constitutes 25%
of the total number of directors (rounded up to the nearest whole
number) to be in office subsequent to such annual meeting.
Both persons nominated for election to the Board of
Directors at the Annual Meeting are currently members of the
Board of Directors. One of the nominees, Stanley D. Rosenberg,
has been nominated for election by the holders of Common Stock,
voting separately as a class, to hold office until the 1995
Annual Meeting of the Stockholders or until his successor shall
have been duly elected and qualified. The second nominee, Ezra
G. Levin, has been nominated for election by the holders of
Common Stock and Class A Preferred Stock, voting together as a
single class, to hold office until the 1997 Annual Meeting of
Stockholders or until his successor shall have been duly elected
and qualified. See, "EXECUTIVE OFFICERS AND DIRECTORS" and
"PRINCIPAL STOCKHOLDERS" for information concerning each of the
nominees and other directors, including the dates on which they
first became directors, their business experience during the past
five years and the number of shares of the Company's Common Stock
and Class A Preferred Stock owned beneficially by each of them as
of March 15, 1994. Each of the nominees has consented to serve
as a member of the Board of Directors if elected.
The persons named in the proxies will vote the shares
represented thereby for the election of the foregoing named
nominees except where authority has been withheld as to a
particular nominee or as to all such nominees. Should any
nominee decline or be unable to serve as a director of the
Company, which is not anticipated, the persons named in the
proxies will vote for the election in his stead of such other
person as the Board of Directors may recommend.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE
ELECTION OF ALL NOMINEES FOR DIRECTOR OF THE COMPANY.
THE BOARD OF DIRECTORS AND ITS COMMITTEES
The Board of Directors of the Company (sometimes
referred to herein as the "Board") held five meetings and acted
by written consent on 20 occasions during 1993. In addition,
management confers frequently with its directors on an informal
basis to discuss Company affairs. During 1993, no director
attended fewer than 75% of the aggregate of the meetings of the
Board and all Committees on which he served, except for Mr.
Connally, who due to illness, attended 50% of such meetings.
The Board of Directors of the Company has the following
standing committees: Executive, Audit, Compensation, and
Conflicts and Compliance Committees. The Board of Directors of
the Company does not have a standing nominating committee nor
does it have any committee performing a similar function.
The Executive Committee meets on call and has authority
to act on most matters during the intervals between meetings of
the entire Board of Directors. Its current members are Messrs.
Hurwitz (Chairman) and Levin. The Executive Committee held no
meetings during 1993.
The Audit Committee presently consists of Messrs. Levin
(Chairman) and Rosenberg. The Audit Committee meets with
appropriate Company financial and legal personnel, internal
auditors and independent public accountants and reviews the
internal controls of the Company and the objectivity of its
financial reporting. This Committee recommends to the Board the
appointment of the independent public accountants to serve as
auditors in examining the corporate accounts of the Company. The
independent public accountants periodically meet privately with
the Audit Committee and have access to the Audit Committee at any
time. The Audit Committee met on two occasions during 1993.
The Compensation Committee reviews and advises
management, makes recommendations to the Board of Directors, and
reviews and approves proposals regarding the establishment or
change of benefit plans, salaries or other compensation afforded
the executive officers and other employees of the Company.
Messrs. Cruikshank, Levin (Chairman) and Rosenberg currently
serve as members of this Committee. The Compensation Committee
met on three occasions during 1993.
The Conflicts and Compliance Committee has the
authority to interpret, administer and enforce the guidelines set
forth in the Company's Code of Business Conduct. In addition, it
has the power to make new rules and guidelines, relating to the
administration or violation of such Code. The Conflicts and
Compliance Committee reports its activities to the Board of
Directors on a regular basis. This Committee currently consists
of Messrs. Cruikshank, Levin and Rosenberg (Chairman) and met on
five occasions during 1993.
DIRECTOR COMPENSATION
Directors who were not employees of or consultants to
the Company received a retainer of $30,000 for the 1993 calendar
year and no additional compensation for attending Committee
meetings. Directors were reimbursed for travel and other
disbursements relating to Board and Committee meetings. Fees to
directors who were also employees of or consultants to the
Company were deemed to be included in their salary or consulting
fees. Beginning in 1994, non-employee directors of the Company
who also serve as directors of the Company's majority owned
subsidiaries, Kaiser Aluminum Corporation ("Kaiser") and/or
Kaiser Aluminum & Chemical Corporation ("KACC"), may also be paid
and reimbursed for expenses pertaining to their services in such
capacities.
In November 1988, MAXXAM Group Inc. ("MGI"), a wholly
owned subsidiary of the Company, entered into a one-year
consulting agreement with one of the Company's former directors,
John B. Connally, under which Mr. Connally received $250,000.
The agreement was subsequently renewed each year on the same
terms and was effective until June 1993.
PROPOSAL TO APPROVE
THE MAXXAM 1994 OMNIBUS EMPLOYEE
INCENTIVE PLAN AND
THE MAXXAM 1994 NON EMPLOYEE
DIRECTOR PLAN
On March 30, 1994, the Compensation Committee (the
"Committee") recommended to the Board the adoption of the MAXXAM
1994 Omnibus Employee Incentive Plan (the "Omnibus Plan") and the
MAXXAM 1994 Non Employee Director Plan (the "Director Plan")
(collectively, the "New Plans"). As of March 30, 1994, the Board
adopted the New Plans, and is hereby submitting the New Plans for
approval by the stockholders of the Company. COPIES OF THE NEW
PLANS AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION MAY BE
OBTAINED WITHOUT CHARGE BY WRITING TO THE COMPANY AT 5847 SAN
FELIPE, SUITE 2600, P.O. BOX 572887, HOUSTON, TEXAS 77257-2887,
ATTENTION: BYRON L. WADE, OR CALLING (713) 267-3670. The
following descriptions of the New Plans are qualified in their
entirety by reference to the full text of the New Plans.
The purpose of the New Plans is to benefit the Company,
its subsidiaries and stockholders by encouraging and providing
for the acquisition of an equity interest in the Company by its
middle and executive management and non employee directors, and
is intended to advance the best interests of the Company by
increasing such individuals proprietary interest in the success
of the Company and its subsidiaries. The Board also believes
that the New Plans will advance the interests of the Company and
its stockholders by enabling the Company to attract and retain
the services of key employees and non-employee directors upon
whose judgment, interest and special effort the successful
conduct of its operations is largely dependent. A similar
employee incentive plan was adopted during 1993 for eligible
employees of Kaiser and its subsidiaries. There are three
non employee directors eligible to participate in the Director
Plan, and there are approximately 30 employees eligible to
participate in the Omnibus Plan.
THE OMNIBUS PLAN
GENERAL PROVISIONS
The Omnibus Plan will be administered by the Committee
or a designated subcommittee thereof. (For simplicity, the
Committee or any designated subcommittee thereof shall be
hereafter referred to interchangeably as the "Committee"). It is
the intention of the Board that the Omnibus Plan be formulated,
adopted and administered in a manner which will allow for
transactions under it to be exempt employee benefit transactions
under Rule 16b-3 in effect from time to time under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
Accordingly, no person shall serve on the Committee who has
received any grant or award under the Omnibus Plan within one
year prior to his/her appointment nor shall any person receive a
grant or award under the Omnibus Plan while a member of the
Committee. Further, the Committee must be comprised solely of at
least two "outside directors" as such term is defined or
interpreted for purposes of Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code"). The Committee may
select participants for awards from among those employees of the
Company recommended by the Chief Executive Officer of the Company
who are, in the opinion of the Committee, key employees in a
position to contribute materially to the Company's continued
growth and development and to its long-term success.
The Committee will have discretion to make awards under
the Omnibus Plan. In making awards, the Committee will have
flexibility in choosing from a variety of stock-based incentive
alternatives and in setting the vesting schedules of any such
award. The Omnibus Plan allows for the grant of incentive stock
options ("ISOs"), nonstatutory stock options, stock appreciation
rights ("SARs"), performance units, performance shares,
restricted stock and unrestricted stock; however, it is not
contemplated that any participant will receive awards from all
categories available under the Omnibus Plan. Up to 1,000,000
shares of Common Stock and 1,000,000 shares of preferred stock of
the Company (collectively, the "Capital Stock") will be reserved
for awards or for payment of rights granted under the Omnibus
Plan (subject to adjustment in the event of certain changes in
the capitalization of the Company). Payments under the Omnibus
Plan for other than direct awards of stock may be made in cash,
in stock or partly in each, at the discretion of the Committee.
If any award terminates or lapses prior to the expiration or
earlier termination of the Omnibus Plan, the shares of Capital
Stock subject to the award will be available again for award
under the Omnibus Plan (except in the case of a stock option as
to which a related SAR has been exercised).
The Omnibus Plan will become effective upon stockholder
approval and will expire on December 31, 2003. Awards made under
the Omnibus Plan prior to its termination shall remain in effect
until they shall have been exercised, satisfied or terminated as
set forth in the Omnibus Plan. The Board of Directors may
suspend or terminate the Omnibus Plan at any time prior to its
expiration. Any amendment increasing the aggregate number of
shares of stock which may be issued pursuant to ISOs or making
certain other material changes shall require stockholder
approval. However, no plan amendment may adversely impact a
previously granted award made under the Omnibus Plan without
consent of the grantee.
Awards under the Omnibus Plan (other than direct grants
of stock or stock obtained as payment through exercise of a
Omnibus Plan award) may not be transferred except by will or the
laws of descent and distribution. Stock obtained under the
Omnibus Plan may be subject to restrictions and recipients will
be subject to reporting and disposition restrictions under
Section 16 of the Exchange Act and related insider trading laws.
STOCK OPTIONS
The Committee may grant options to purchase shares of
Capital Stock. Such options may be nonstatutory or nonqualified
stock options and ISOs pursuant to Section 422 of the Code.
The option price for any option may not be less than
the par value of Capital Stock and ISOs granted under the Omnibus
Plan may not utilize an exercise price which is less than the
fair market value of Capital Stock on the date of the grant. The
option price may be paid in cash, in previously acquired Capital
Stock held for at least six (6) months and with a fair market
value on the date of exercise equal to the option price, or by
combination of cash and Capital Stock. The Committee may also
approve other forms of payment. Options may not be exercised
sooner than one year or more than ten years from the date of
grant.
STOCK APPRECIATION RIGHTS
The Committee may grant SARs in conjunction with, or
apart from, stock options. An SAR entitles the grantee to
receive a payment from the Company equal to the excess of the
fair market value of a share of Common Stock at the date of
exercise over a specified price fixed by the Committee. The
Committee may establish a maximum appreciation value when
granting SARs. Payment for SARs may be made in cash only,
Capital Stock, or a combination thereof, at the discretion of the
Committee. SARs may not be exercised sooner than one year or
more than ten years from the date of grant.
RESTRICTED STOCK
The Committee may grant shares of restricted Capital
Stock under the Omnibus Plan. The Committee may make the grant
of restricted stock subject to various conditions including the
participant remaining employed by the Company for a number of
years. Participants holding shares of restricted stock may
exercise full voting rights with respect to those shares but
shall not be entitled to receive dividends and other
distributions paid, if any, with respect to those shares during
the period of restriction. A holder of restricted stock may not
sell or otherwise transfer the Capital Stock until the
restrictions have lapsed or have been removed.
PERFORMANCE UNITS AND PERFORMANCE SHARES
The Committee may grant performance units and
performance shares under the Omnibus Plan. In such event, the
Committee will establish a performance period over which
corporate, business unit or individual performance goals set by
the Committee will be measured. At the end of the performance
period, the performance units or performance shares will be paid
out at their initial established values, increased or decreased,
as the case may be, based upon performance above or below target
levels. Payment may be made in cash, Capital Stock, or a
combination thereof as determined by the Committee. Payment may
be made in a lump sum or in installments at the Committee's
discretion. In the event payment is deferred, interest or
dividend equivalents may be paid to participants.
UNRESTRICTED STOCK
Unrestricted shares of Capital Stock also may be
awarded under the Omnibus Plan, as well as upon the exercise of
stock options, in connection with distributions due on the
exercise of SARs or as payment on performance units or
performance shares.
RIGHTS TO GRANTS UPON TERMINATION OF EMPLOYMENT
In the event a participant's employment is terminated
by reason of death or disability, vested options or other vested
rights under the Omnibus Plan may be exercised within twelve
months of termination (or within three years in the event of
retirement), or the remaining term of the option or right,
whichever is shorter. If employment is terminated for any other
reason, options or rights may be exercised for three months, or
the remaining term of the option or right, whichever is shorter,
except that participants who are terminated for cause immediately
forfeit all exercise rights. In the event a participant dies,
becomes disabled or retires after having reached normal
retirement age for pension purposes, a portion of such person's
granted shares of restricted stock will become free of
restrictions, and a portion of such person's granted stock
options, SARs, performance units or performance shares shall
vest. Such portion shall be equal to the number of shares
subject to such grants multiplied by the number of full months
elapsed between the date of grant and the date of death,
disability or retirement, divided by the number of full months of
the period for which such grants were to have been restricted or
to have remained unvested. The remaining portion of such grants
shall be forfeited. In the event of retirement before normal
retirement age, all such grants shall continue to be subject to
their respective conditions, vesting schedules and restrictions,
including any requiring continued employment. In the event a
participant's employment is terminated, include retirement but
other than for cause, the Committee may, in its discretion, waive
any applicable forfeiture, vesting requirements or restrictions
as it deems appropriate.
CERTAIN TAX CONSEQUENCES
The following summary is a general discussion of
certain Federal income tax consequences expected to result to the
Company and participants of the Omnibus Plan in connection with
certain awards granted under the Omnibus Plan. This discussion
is based upon provisions of the Code, the regulations,
administrative rulings and judicial decisions in effect at the
date of this proxy statement, all of which are subject to change
(possibly with retroactive effect) or different interpretations.
The grant of a nonstatutory stock option creates no
taxable income to a participant. Upon exercise of a nonstatutory
stock option, a participant will generally recognize ordinary
income to the extent that the fair market value of the stock on
the date of exercise exceeds the option price. When the stock is
eventually sold, a participant recognizes capital gain or loss to
the extent that the sale price differs from the fair market value
of the stock on the date of exercise. To the extent that a
participant recognizes ordinary income, the Company will
generally receive a corresponding tax deduction.
The grant and the exercise of an ISO generally creates
no regular taxable income to a participant. When the stock is
eventually sold, a participant recognizes capital gain to the
extent that the sale price exceeds the option price, provided the
participant has held the stock for at least two years from the
date of the grant of the stock option and at least one year from
the date of its exercise. If the holding period requirements are
not met, a participant recognizes ordinary income in an amount
equal to the lesser of (i) the fair market value of the stock on
the date of exercise over the option price, or (ii) the amount
realized on disposition over the option price. Any excess of the
sale price over the fair market value of the stock on the date of
exercise is taxed as capital gain to the participant. The
Company generally receives a corresponding tax deduction to the
extent that the gain recognized by the participant is treated as
ordinary income. The excess of the fair market value of the
stock on the date of exercise over the option price is included
in alternative minimum taxable income, possibly subjecting a
participant to alternative minimum tax.
The grant of performance units or performance shares
creates no taxable income to the participant. Upon payment of
such awards, the amount of cash and/or the fair market value of
stock received by the participant will generally be recognized as
taxable ordinary income and the Company will generally receive a
corresponding tax deduction.
The grant of SARs creates no taxable income to the
participant. Upon the exercise of SARs, the amount of cash
and/or the fair market value of stock received by the participant
will generally be recognized as taxable ordinary income and the
Company will generally receive a corresponding tax deduction.
Restricted stock is generally not taxable to a
participant until the restricted stock is no longer subject to
restrictions or to a substantial risk of forfeiture. A
participant may elect under Section 83(b) of the Code, however,
to have an amount equal to the difference between the fair market
value of the stock on the date of grant and the participant's
cost, if any, taxed as ordinary income at the time of the grant,
with any future appreciation taxed as capital gain. In the
absence of such an election, upon lapse of the restrictions or a
substantial risk of forfeiture, a participant recognizes ordinary
income to the extent that the fair market value of the stock on
the date the restrictions lapse exceeds the participant's cost,
if any. Subsequent appreciation in the value of the restricted
stock is taxable as capital gain to the participant when
recognized. To the extent that a participant recognizes ordinary
income, the Company will generally receive a corresponding tax
deduction.
Unrestricted stock is generally taxable to a
participant upon receipt in an amount equal to the difference
between the fair market value of the stock on the date of grant
and the participant's cost, if any. Any such amount is taxed as
ordinary income at the time of the grant, with any future
appreciation taxed as capital gain when recognized. The Company
generally receives a tax deduction in the amount of ordinary
income recognized by the participant.
COMPENSATION DEDUCTION LIMITATION
In the 1993 Omnibus Budget Reconciliation Act ("OBRA"),
Congress limited to $1 million per year the tax deduction
available to public companies for certain compensation paid to
designated executive officers effective January 1, 1994. OBRA
provides an exception from this limitation for certain
"performance based" compensation, if various requirements are
satisfied. The Omnibus Plan is designed to give the Committee
flexibility to satisfy this exception for certain grants
thereunder whereby the compensation the employee could receive is
based solely on an increase in the value of the stock after the
date of the grant.
APPROVAL OF THE OMNIBUS PLAN REQUIRES THE AFFIRMATIVE
VOTE OF THE HOLDERS OF A MAJORITY OF THE COMPANY'S CAPITAL STOCK
REPRESENTED AT THE ANNUAL MEETING. THE BOARD OF DIRECTORS
RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY VOTE "FOR"
APPROVING THE OMNIBUS PLAN.
THE DIRECTOR PLAN
GENERAL PROVISIONS
The Director Plan is designed to be a formula plan and
will be administered by the Board of Directors. Non-qualified
stock options to purchase 500 shares of Common Stock shall be
granted to each new non employee director the day following the
Annual Meeting at which such director is first elected or
appointed to the Board as a director. Thereafter, each eligible
non employee director shall receive annual option grants the day
following the Annual Meeting to purchase 300 shares of Common
Stock. Assuming stockholder approval of the Director Plan,
options to purchase 500 shares of Common Stock shall be granted
to each non-employee director on the day following the Annual
Meeting.
Under the Director Plan, options are granted for a term
of ten years and become cumulatively exercisable as to 25 percent
of the shares of Common Stock on each of the first, second, third
and fourth anniversaries of the date of grant. No stock option
can be exercised earlier than six months from the date of grant.
An option granted under the Director Plan will terminate on the
earlier of the date of expiration or one year after the date of
ceasing to serve as a director. Special rules also apply if an
optionee dies or if the optionee has ceased to serve as a
director on or after attaining the age of sixty five years.
Options granted under the Director Plan will not be transferable
other than by will or under the laws of descent and distribution
and will be exercisable only by him or his legal guardian or
representative during his lifetime. No option, however, may be
exercised more than ten years after the date of grant under the
Director Plan.
The exercise price per share of Common Stock for an
option granted under the Director Plan may not be less than the
fair market value of a share of Common Stock on the date such
option is granted. Under the Director Plan, the option price may
be paid either in cash or (unless the option provides otherwise
and subject to certain restrictions) by tendering Common Stock
having a value equal to the option price.
Under the Director Plan, the total amount of Common
Stock with respect to options which may be granted shall not
exceed 35,000 shares. Only non employee directors of the Company
are eligible to participate in the Director Plan, of which there
are currently only three. In the event an option expires or is
terminated or cancelled, the shares of Common Stock allocable to
the unexercised portion of such option may again be subject to an
option under the Director Plan. Options will not be granted
subsequent to December 31, 2003.
Adjustments will be made under the Director Plan in the
number of shares of Common Stock which are issuable upon exercise
of options and in the price per share thereof to protect the
holders of options against dilution in the event of any
subdivision or consolidation of Common Stock or any other capital
adjustment, the payment of a stock dividend, or other increase or
decrease in shares of Common Stock effected without receipt of
consideration by the Company. Adjustments will also be made as
necessary in the event of mergers, consolidations and sales of
substantially all the assets of the Company. In the event of a
sale or merger or consolidation in which the Company is not the
surviving corporation or if the Company sells substantially all
of its assets and is liquidated, however, the holder of an option
under the Director Plan shall have the right to exercise any
non qualified option held for at least six months (and any
incentive option held for at least one year) in full during the
period preceding the effective date of such merger, consolidation
or sale and liquidation.
The Board of Directors has the power to amend,
terminate or suspend the Director Plan; provided, however, that
to the extent required to qualify the plan under Rule 16b 3 of
the Securities Exchange Act of 1934, as amended and as may be
amended from time to time, the Board may not materially increase
the aggregate number of shares of Common Stock which may be
issued under either plan, materially modify the requirements as
to eligibility for participation in the plan or materially
increase the benefits accruing to participants under the plan,
without stockholder approval, and provided further that the Board
may not amend the plan more than once every six months that would
change the amount, price or timing of the initial and annual
grant other than to comport with changes in the Code, the
Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder.
CERTAIN TAX CONSEQUENCES
The Federal income tax consequences expected to result
to the Company and participants of the Director Plan are similar
to those discussed previously for the Omnibus Plan.
APPROVAL OF THE DIRECTOR PLAN REQUIRES THE AFFIRMATIVE
VOTE OF THE HOLDERS OF A MAJORITY OF THE COMPANY'S CAPITAL STOCK
REPRESENTED AT THE ANNUAL MEETING. THE BOARD OF DIRECTORS
RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY VOTE "FOR"
APPROVING THE DIRECTOR PLAN.
NEW PLAN BENEFITS TABLE
As of the date of this proxy statement, the following
table sets out the determinable number of shares of Common Stock
that will be issued or allocated to each of the named executive
officers and the following groups under the Omnibus Plan and the
Director Plan:
Omnibus Plan Director Plan
--------------- ---------------
Number of Number of
Name and Position Dollar Value ($) Shares Dollar Value ($) Shares
--------------------------- ------------------- --------- ------------------- --------
Charles E. Hurwitz,
Chairman of the Board,
Chief Executive
Officer, President and
Director . . . . . . . - (1)(2) 50,000 $-0- -0-
Anthony R. Pierno,
Senior Vice President
and General Counsel . -0- -0- -0- -0-
John T. La Duc,
Senior Vice President
and Chief Financial
Officer . . . . . . . -0- -0- -0- -0-
Paul N. Schwartz,
Senior Vice President,
Corporate Development . . . -0- -0- -0- -0-
Executive Group . . . . . . - (1)(2) 50,000 -0- -0-
Non-Executive Director Group
-0- -0- - (1) 1,500
Non-Executive Officer
Employee Group . . . . . . -0- -0- -0- -0-
<FN>
--------------------
(1) The actual value grantees may realize, if any, will be the market price per share of Common Stock on the date of
exercise less the exercise price, which is or will be the closing price on the date of grant as reported on the American
Stock Exchange. The closing price per share of the Common Stock on April 6, 1994, as reported in The Wall Street
Journal was $36.00
(2) Exercise price will be $35.50 per share.
PROPOSAL TO APPROVE THE MAXXAM 1994 EXECUTIVE BONUS PLAN
The MAXXAM 1994 Executive Bonus Plan (the "Executive
Plan") was also recommended by the Committee, and adopted by the
Board subject to stockholder approval, on March 30, 1994, and is
hereby submitted to the stockholders of the Company for approval.
The purpose of the Executive Plan will be to provide
performance incentives to participants while securing, to the
extent practicable, a tax deduction by the Company for payments
of additional incentive compensation to each participant.
Participants in the Executive Plan will be those officers whose
base salary is equal to or in excess of $600,000. The Executive
Plan will be administered by the Compensation Committee or a
designated subcommittee thereof, again, comprised solely of at
least two "outside directors" as such term is defined or
interpreted for purposes of Section 162(m) of the Code. Upon
stockholder approval, the Executive Plan will become effective
retroactive to January 1, 1994.
Prior to the first day of each fiscal year, the
Committee will set specific performance goals for each
participant for such year under each of the following business
criteria: (a) improvement in consolidated financial results, (b)
the completion of specific business development project(s), (c)
the completion of one or more transactions involving an
acquisition or disposition of securities or assets with a fair
market value greater than $100 million, (d) improvement in
earnings per share, and (e) the achievement of a predetermined
level of net income or loss for the principal divisions of the
Company. Pursuant to transition rules in the proposed
regulations, the specific goals for 1994 were set by the
Committee prior to April 1, 1994.
For each specific performance goal, a predetermined
bonus amount can be earned by the participant upon achievement of
such goal. The Executive Plan will be a cash-only bonus plan
under which bonuses earned by each participant thereunder may not
exceed an aggregate of $3,000,000 per fiscal year. The Committee
has absolute discretion to reduce any bonus payments earned under
the Executive Plan.
The Board of Directors may terminate, suspend or amend
the Plan, in whole or part, at any time, including the adoption
of amendments deemed necessary or advisable provided stockholder
approval is obtained if required by Section 162(m) of the Code.
APPROVAL OF THE EXECUTIVE PLAN REQUIRES THE AFFIRMATIVE
VOTE OF THE HOLDERS OF A MAJORITY OF THE COMPANY'S CAPITAL STOCK
REPRESENTED AT THE ANNUAL MEETING. THE BOARD OF DIRECTORS
RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY VOTE "FOR"
APPROVING THE EXECUTIVE PLAN.
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth certain information, as
of the record date, with respect to the executive officers and
directors of the Company. All officers and directors hold office
until their respective successors are elected and qualified or
until their earlier resignation or removal.
NAME POSITIONS AND OFFICES WITH THE COMPANY
------------------ -------------------------------------------------------
Charles E. Hurwitz Chairman of the Board, Chief Executive Officer,
President and Director
John T. La Duc Senior Vice President and Chief Financial Officer
Anthony R. Pierno Senior Vice President and General Counsel
Paul N. Schwartz Senior Vice President -- Corporate Development
Robert E. Cole Vice President -- Federal Government Affairs
Diane M. Dudley Vice President -- Chief Personnel Officer
Robert W. Irelan Vice President -- Public Relations
Jacques C. Lazard Vice President and Corporate Controller*
Ronald L. Reman Vice President -- Taxes
Byron L. Wade Vice President, Secretary and Deputy General Counsel
Robert J. Cruikshank Director
Ezra G. Levin Director
Stanley D. Rosenberg Director
<FN>
--------------------
* Mr. Lazard elected to leave the employment of the Company effective March 31, 1994.
Charles E. Hurwitz. Mr. Hurwitz, age 53, has served as
a member of the Board of Directors and the Executive Committee of
the Company since August 1978 and was elected as Chairman of the
Board and Chief Executive Officer of the Company in March 1980.
Since January 1, 1993, Mr. Hurwitz has also served the Company as
President. Mr. Hurwitz has also served as a director and
Chairman of the Board of SHRP, Inc. ("SHRP"), the sole general
partner of Sam Houston Race Park, Ltd., a Texas limited
partnership, which has been granted a license to operate a horse
racing facility in Harris County, Texas. Mr. Hurwitz has served
as a director of Kaiser since October 1988 and of KACC since
November 1988. Since May 1982, Mr. Hurwitz has been Chairman of
the Board and Chief Executive Officer, and since January 1, 1993,
President, of MGI. From May 1986 until February 1993,
Mr. Hurwitz served as a director of The Pacific Lumber Company
("Pacific Lumber"), a subsidiary of the Company engaged in forest
products operations, and from December 31, 1992 until February
1993, he served as Chairman of the Board of Pacific Lumber.
Mr. Hurwitz has been, since January 1974, Chairman of the Board
and Chief Executive Officer of Federated Development Company
("Federated"), a New York business trust primarily engaged in the
management of real estate investments.
John T. La Duc. Mr. La Duc, age 51, has served as
Senior Vice President and Chief Financial Officer of the Company
since September 1990, and as Vice President and Chief Financial
Officer of MGI since October 1990. Mr. La Duc has also been
Chief Financial Officer of Kaiser since May 1990 and a Vice
President since June 1989. He has also served as a Vice
President since June 1989 and Chief Financial Officer since
January 1990 of KACC. From January 1, 1993 until April 5, 1993,
Mr. La Duc served as Treasurer of Kaiser and KACC, having
previously served as Treasurer of Kaiser and KACC from September
1987 to May 1990 and January 1990, respectively, and Assistant
Treasurer of Kaiser from February 1987 to September 1987.
Mr. La Duc was Assistant Treasurer and Treasurer, International
Operations of KACC from 1981 until 1987. Mr. La Duc also
currently serves as a director, Vice President and Chief
Financial Officer of Pacific Lumber and its wholly owned
subsidiary, Scotia Pacific Holding Company ("Scotia Pacific").
Anthony R. Pierno. Mr. Pierno, age 61, serves as
Senior Vice President and General Counsel of the Company,
positions he has held since February 1989. He also serves as
Vice President and General Counsel of MGI, Pacific Lumber and
Scotia Pacific and as a director of Pacific Lumber since November
1993. Additionally, Mr. Pierno has served as Vice President and
General Counsel of Kaiser and KACC since January 1992.
Immediately prior to joining the Company, Mr. Pierno served as
partner in charge of the business practice group in the Los
Angeles office of the law firm of Pillsbury, Madison & Sutro
since 1986. He has served as the Commissioner of Corporations of
the State of California and as Chair of several committees of the
State Bar of California. Mr. Pierno is Chairman of the Board of
Trustees of Whittier College, and a former member and past
Chairman of the Board of Trustees of Marymount College.
Paul N. Schwartz. Mr. Schwartz, age 47, has served as
Senior Vice President--Corporate Development of the Company since
June 1987, after serving as Vice President--Corporate Development
of the Company from July 1985 to June 1987. Mr. Schwartz has
served as a Vice President of MGI and Pacific Lumber since May
1987 and January 1987, respectively. He also serves as Chairman
of the Board and sole executive officer of United Financial
Group, Inc., a Delaware public corporation, and as a director of
Pacific Lumber and Scotia Pacific since February 1993. Since
July 1993, Mr. Schwartz has served as a director and Executive
Vice President of SHRP.
Robert E. Cole. Mr. Cole, age 47, has served the
Company as Vice President--Federal Government Affairs since
September 1990. Since March 1981, Mr. Cole has also served as a
Vice President of KACC. In addition, Mr. Cole has served as Vice
President--Federal Government Affairs for MGI and Pacific Lumber
since September 1990. He also currently serves as Treasurer and
as a director of National Environmental Development Association,
and as a director, Secretary and Treasurer of Global Climate
Coalition, both of which are 501(c)(6) organizations.
Diane M. Dudley. Ms. Dudley, age 53, was named Vice
President--Chief Personnel Officer in May 1990. From June 1987
until May 1990, she was Vice President--Personnel and
Administration of the Company. From December 1983 until June
1987, Ms. Dudley served as Assistant Vice President--Personnel of
the Company.
Robert W. Irelan. Mr. Irelan, age 57, has served the
Company as Vice President--Public Relations since September 1990.
He has also been Vice President--Public Relations of MGI and
Pacific Lumber since September 1990, and Vice President--Public
Relations of KACC since February 1988. From June 1985 to
February 1988, Mr. Irelan served as Divisional Vice President--
Corporate Public Relations of KACC, and from 1968 to June 1985 he
served KACC and certain affiliated companies in a variety of
positions.
Jacques C. Lazard. Mr. Lazard, age 42, served as
Controller of the Company from February 1982 until May 1990 when
he was named Corporate Controller. In June 1987, he was elected
a Vice President of the Company. He previously had served as an
Assistant Vice President of the Company from December 1983 to
June 1987. Mr. Lazard served as Vice President--Controller of
MGI and as Vice President of Pacific Lumber from June 1988. From
May 1987 until June 1988, Mr. Lazard served as Controller of MGI.
In November 1992, Mr. Lazard was elected a Vice President of
Scotia Pacific. He also served as a director, Vice President and
Controller of certain subsidiaries of the Company engaged in real
estate operations. Mr. Lazard resigned all his positions with
the Company and its subsidiaries as of March 31, 1994.
Ronald L. Reman. Mr. Reman, age 36, was named Vice
President--Taxes of the Company in September 1992. Prior to
September 1992, he had served the Company as Director of Taxes
since joining the Company in October 1986. From July 1984 until
October 1986, Mr. Reman was a Senior Manager in the Tax
Department of the New York office of Price Waterhouse after
having served seven years with the New York office of Coopers &
Lybrand, both of which are accounting firms. Mr. Reman also
serves as Vice President--Taxes of MGI and certain other
subsidiaries of the Company, and as Assistant Treasurer of Kaiser
and KACC.
Byron L. Wade. Mr. Wade, age 47, has served as Vice
President and Deputy General Counsel of the Company since May
1990, and Secretary of the Company since October 1988. Mr. Wade
has also served as Vice President and Secretary of Kaiser and
KACC since January 1992, and Deputy General Counsel of Kaiser and
KACC since May 1992 and June 1992, respectively. Since November
1992, he has been Vice President, Secretary and Deputy General
Counsel of Scotia Pacific. In addition, Mr. Wade has served as a
director, Vice President and Secretary of SHRP since July 1993.
He was Assistant Secretary of the Company from November 1987 to
October 1988 and Assistant General Counsel from November 1987
until May 1990. Mr. Wade has served as a Vice President of
Pacific Lumber since June 1990 and as a Vice President of MGI
since July 1990. He had previously served as Vice President,
Secretary and General Counsel of MCO Resources, Inc., a publicly-
traded oil and gas company, which was majority owned by the
Company.
Robert J. Cruikshank. Mr. Cruikshank, age 63, was
elected a director of the Company at the Company's Annual Meeting
in May 1993. In addition, he was appointed a director of Kaiser
and KACC on January 26, 1994. Mr. Cruikshank was a Senior
Partner in the international public accounting firm of Deloitte &
Touche from December 1989 until his retirement in March 1993.
Prior to its merger with Touche Ross & Co. in December 1989, Mr.
Cruikshank served as Managing Partner of Deloitte Haskins & Sells
from June 1974 until the merger and served on such firm's board
of directors from 1981 to 1985. Mr. Cruikshank also serves as a
director of Houston Industries Incorporated, a public utility
holding company with interests in electric utilities, cable
television, coal and transportation businesses; Compass Bank of
Texas; and Texas Biotechnology Incorporated.
Ezra G. Levin. Mr. Levin, age 60, was first elected a
director of the Company in May 1978. Mr. Levin is a nominee for
reelection as a director of the Company to serve until the 1997
Annual Meeting of Stockholders. He is a partner in the law firm
of Kramer, Levin, Naftalis, Nessen, Kamin & Frankel. Mr. Levin
also serves as a trustee of Federated and as a director of MGI,
Kaiser, KACC, Pacific Lumber, Scotia Pacific and UMB Bank and
Trust Company.
Stanley D. Rosenberg. Mr. Rosenberg, age 62, was first
elected to the Board of Directors of the Company in June 1981.
He is a partner in the law firm of Rosenberg, Tuggey, Agather &
Rosenthal. Mr. Rosenberg was a partner in the law firm of
Oppenheimer, Rosenberg & Kelleher, Inc. from its inception in
1971 until February 1990, at which time he assumed through June
30, 1993, the position Of Counsel with that firm.
PRINCIPAL STOCKHOLDERS
As of March 15, 1994, Federated and various other
persons and entities beneficially owned, in the aggregate,
2,747,994 shares, or approximately 31.3% of the Company's
outstanding Common Stock, and 658,050 shares, or approximately
97.0%, of the Company's outstanding Class A Preferred Stock.
Based on the information contained in a statement on Schedule 13D
filed with the Securities and Exchange Commission and information
otherwise available to the Company, such persons may be deemed a
"group" (the "Stockholder Group") within the meaning of Section
13(d) of the Exchange Act. The shares directly held by members
of the Stockholder Group are as follows: Federated--1,740,626
shares of Common Stock and 656,853 shares of Class A Preferred
Stock (approximately 19.9% and 96.8%, respectively, of the
outstanding shares); Charles E. Hurwitz--1,006,016 shares of
Common Stock and 1,064 shares of Class A Preferred Stock
(approximately 11.7% and less than 1%, respectively, of the
outstanding shares); James H. Paulin, Jr., Secretary and
Treasurer of Federated--352 shares of Common Stock and 133 shares
of Class A Preferred Stock (less than 1% of the respective
outstanding shares); and Ezra G. Levin--1,000 shares of Common
Stock (less than 1% of the outstanding shares). Federated shares
include exercisable options to purchase 71,175 shares of Common
Stock, which shares Federated and Mr. Hurwitz are deemed to own
beneficially. Messrs. Hurwitz and Levin serve as trustees of
Federated, and Mr. Hurwitz, together with members of his
immediate family and trusts for the benefit thereof, owns all of
the voting shares of Federated, and his positions include
Chairman of the Board and Chief Executive Officer of the Company
and Federated and membership on the Company's Executive
Committee. By reason of the foregoing and their relationship
with the members of the Stockholder Group, Messrs. Hurwitz and
Levin may be deemed to possess shared voting and investment power
with respect to the shares held by the Stockholder Group.
The following table sets forth, as of March 15, 1994,
the beneficial ownership of the Company's Common Stock and Class
A Preferred Stock by (i) those persons known by the Company to
own beneficially more than 5% of the shares of each class then
outstanding, (ii) each of the named executive officers (other
than Mr. Hurwitz), and (iii) all directors and officers of the
Company as a group.
Amount and
Nature of Percent Combined
Beneficial of Voting
Beneficial Owner Title of Class Ownership(1) Class Power(2)
---------------------------------------------- -------------------- ----------------------- ---------- ---------
Federated Development Company (3) Common Stock 1,740,626(4) 19.9%
Class A 53.4%
Preferred Stock 656,853 96.8%
The Stockholder Group(3) Common Stock 2,747,994(4)(5) 31.3%
Class A 59.9%
Preferred Stock 658,050 97.0%
Harold C. Simmons, Kronos, Inc., Common Stock 1,278,150(6) 14.7% 8.2%
The Combined Master Retirement Trust,
NL Industries, Inc. and related entities
Robert J. Cruikshank Common Stock None -- --
Charles E. Hurwitz Common Stock 2,746,642(4)(5)(7) 31.3%
Class A 59.9%
Preferred Stock 657,917 97.0%
John T. La Duc Common Stock 491(8) * *
Ezra G. Levin Common Stock 1,000(7) * *
Anthony R. Pierno Common Stock -0-(8) -- --
Stanley D. Rosenberg Common Stock 2,000 * *
Paul N. Schwartz Common Stock 11,977(9) * *
Byron L. Wade Common Stock 737(8) * *
All directors and executive officers of the Common Stock 2,768,228(4)(5)(10) 31.6%
Company as a group (13 persons) Class A 60.1%
Preferred Stock 657,917(11) 97.0%
<FN>
--------------------
* Less than 1%.
(1) Except as may otherwise be indicated, the beneficial owners have sole voting and investment power with respect to
the shares listed in the table.
(2) The Company's Class A Preferred Stock is generally entitled to ten votes per share on matters presented to a vote
of the Company's stockholders.
(3) The address of Federated is 5847 San Felipe, Suite 2600, Houston, Texas 77057. The address of the Stockholder
Group is c/o Ezra Levin, Esq., Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, 919 Third Avenue, New York, New York
10022.
(4) Includes 71,175 shares of Common Stock which may be acquired in exchange for 7% Cumulative Exchangeable Preferred
Stock of MCO Properties, Inc. owned by Federated.
(5) Includes as of December 31, 1993 (a) 1,669,451 shares of Common Stock and 656,853 shares of Class A Preferred
Stock, respectively, owned by Federated as to which Mr. Hurwitz possesses voting and investment power, (b) 1,526 shares
of Common Stock owned by Mr. Hurwitz's spouse as separate property, (c) 46,500 shares of Common Stock owned by a limited
partnership controlled by Mr. Hurwitz and his spouse, 23,250 of which shares were separately owned by Mr. Hurwitz's
spouse prior to their transfer to such limited partnership and as to which Mr. Hurwitz disclaims beneficial ownership,
and (d) 158,564 shares of Common Stock owned by 1992 Hurwitz Investment Partnership, L.P., of which 79,282 shares are
owned by Mr. Hurwitz's spouse as separate property.
(6) Information set forth herein is based solely on the Schedule 13D filed with the Securities and Exchange Commission
on June 30, 1989, as amended through March 15, 1994 (the "Schedule 13D"). The Schedule 13D was filed by Harold C.
Simmons, Kronos, Inc. ("Kronos"), NL Industries, Inc. ("NL"), The Combined Master Retirement Trust (the "Trust") and
certain related entities, reporting beneficial ownership of the Company's Common Stock. The Schedule 13D states that
Kronos and the Trust are the direct beneficial owners of 250,900 and 1,027,250 shares of the Company's Common Stock,
respectively. The Schedule 13D also states that Mr. Simmons may be deemed to have the direct power to vote and direct
the disposition of the shares of the Company's Common Stock held by the Trust and that Mr. Simmons and the entities
other than Kronos who filed the Schedule 13D may be deemed to share the indirect power to vote and direct the
disposition of the shares of the Company's Common Stock held by Kronos. Mr. Simmons disclaims beneficial ownership of
all of such shares of the Company's Common Stock. The address of Mr. Simmons and the Trust is Three Lincoln Centre,
5430 LBJ Freeway, Suite 1700, Dallas, Texas 75240. The address of Kronos and NL is 3000 North Sam Houston Parkway East,
Houston, Texas 77032.
(7) Does not include shares owned by other members of the Stockholder Group.
(8) Represents the number of shares such person would have received on March 15, 1994 for his exercisable stock
appreciation rights (excluding SARs payable in cash only) if such rights had been paid solely in shares of Common Stock.
(9) Includes 1,228 shares representing the number of shares Mr. Schwartz would have received on March 15, 1994 for his
exercisable stock appreciation rights (excluding SARs payable in cash only) if such rights had been paid solely in
shares of Common Stock.
(10) The Stockholder Group beneficially owns 2,747,994 of such shares. As to the remaining shares, the directors and
officers owning such shares have sole voting and investment power with respect to all such shares except 10,749 owned by
a trust of which an officer and his spouse are trustees.
(11) All of such shares are beneficially owned by the Stockholder Group.
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table sets forth compensation
information, cash and non-cash, for each of the Company's last
three completed fiscal years with respect to the Chief Executive
Officer and the four most highly compensated executive officers
of the Company (collectively referred to as the "named executive
officers") for the fiscal year ended December 31, 1993:
Long-Term Compensation
----------------------------------
Annual Compensation Awards Payouts
------------------------------------- ------------------- -------------
(a) (b) (c) (d) (e) (f) (g) (h) (i)
Other Restricted
Annual Stock Options/ LTIP All Other
Name and Salary Bonus Compensation Award(s) SARs Payouts Compensation
Principal Position Year ($) ($) ($)(1)(2) ($) (#) ($) ($)(1)
--------------------- ------ ----------- ---------- ------------ ----------- -------- --------------- --------------
Charles E. Hurwitz, 1993 $590,000 $400,000 $-0- $-0- 50,000 $-0- $97,494(3)
Chief Executive 1992 558,250 400,000 -0- -0- -0- -0- 88,102(3)
Officer,
Chairman of the Board 1991 538,935 375,000 -- -0- -0- -0- --
and President
Anthony R. Pierno, 1993 321,232 290,000(4) -0- -0- -0- -0- 57,179(3)
Senior Vice President 1992 302,275 265,000(4) -0- -0- -0- -0- 50,123(3)
and General Counsel 1991 288,922 265,000(4) -- -0- -0- -0- --
Paul N. Schwartz, 1993 256,210 293,000(4) -0- -0- -0- -0- 47,426(3)
Senior Vice President- 1992 239,035 216,000(4) -0- -0- 25,000 -0- 44,538(3)
- 1991 228,488 181,600(4) -- -0- -0- -0- --
Corporate Development
John T. La Duc,(5) 1993 240,000 25,000 -0- -0-(6) -0- -0-(7) 4,872(10)
Senior Vice President 1992 225,000 45,000 -0- 1,428,967(7) 10,000 192,698(8) 8,469(10)
and Chief Financial 1991 195,000 53,500 -- -0- -0- 1,000,000(9) --
Officer
Byron L. Wade 1993 165,833 124,412 -0- -0- -0- -0- 30,955(3)
Vice President, 1992 156,054 95,000 -0- -0- 15,000 -0- 28,854(3)
Secretary
and Deputy General 1991 149,169 95,000 -0- -0- -0- -0- --
Counsel
<FN>
--------------------
(1) Pursuant to the transition rules effective October 21, 1992, these amounts are excluded for the Company's 1991 fiscal
year.
(2) Excludes perquisites and other personal benefits because the aggregate amount of such compensation is the lesser of
either $50,000 or 10% of the total of annual salary and bonus reported for the named executive officer.
(3) Reflects the following aggregate amounts accrued in respect of the Company's Revised Capital Accumulation Plan for 1993
and 1992, respectively, pursuant to which, in general, benefits vesting 10% annually are payable upon termination of
employment with the Company; Mr. Hurwitz--$88,500 and $83,738; Mr. Pierno--$48,185 and $45,341; Mr. Schwartz--
$38,432 and $35,855; and Mr. Wade: $24,875 and $23,408. Additionally, these amounts reflect matching contributions
by the Company under its 401(k) savings plan for 1993 and 1992, respectively, as follows: Mr. Hurwitz-- $8,994 and
$4,364; Mr. Pierno--$8,994 and $4,782; Mr. Schwartz--$8,994 and $8,728; and Mr. Wade--$6,080 and $5,446.
(4) Pursuant to the employment agreements of Messrs. Pierno and Schwartz, their personal loans from the
Company outstanding on the date of such agreements are forgiven at the rate of $15,000 and $20,000, respectively,
per year. These amounts are included here as additional bonus compensation. See, "Certain Transactions" for
discussion on such personal loans.
(5) Mr. La Duc received his compensation principally from KACC; however, the Company reimbursed KACC for
certain allocable costs associated with the performance of services for the Company by such executive officer. The
table reflects such officer's total compensation, rather than any allocated
part of such compensation.
(6) At the end of fiscal year 1993, Mr. La Duc held 131,110 shares of restricted common stock of KAC valued at approximately
$1,179,990 based on the closing price of $9.00 per share. Restrictions on such shares will be lifted on each December 2, 1994,
1995 and 1996 as to shares totaling 36,237, 47,436 and 47,437, respectively. No dividends will be paid to Mr. La Duc in
respect of any restricted shares held.
(7) Valuation based on the average December 1, through 28, 1992 closing prices of $8.539 per share. Includes payout during
1993 of $5,934 of shares of KAC common stock issued in April 1993 as 5% of 1992 distribution, $332,918 of shares of KAC
common stock which restrictions were lifted, and $699 cash paid for fractional shares and balance of 1992
LTIP account.
(8) In December 1992, in connection with the adoption, subject to stockholder approval, of the Kaiser 1993 Omnibus Stock
Incentive Plan (the "Plan"), Kaiser LTIP participants were permitted to elect to receive payment of their LTIP account balances
of December 31, 1992 as follows: (i) Amounts earned and vested payable half in cash and half in restricted shares of common
stock of Kaiser. The portion payable in restricted shares of common stock of Kaiser would be divided by the average closing
price for the stock for December 1992 through the latest practical date to determine the number of shares granted.
As implemented, the average December price of $8.539 per share (through December 28, 1992) was utilized. The portion payable
in cash was reduced by 1992 bonuses paid to recipients and by appropriate tax withholdings. (ii) Amounts earned
and unvested as of December 31, 1992 under the Kaiser LTIP would be paid in options or shares of restricted stock under
the Plan following its implementation. Restrictions would be removed or options would vest at the rate of 25% each
December for four (4) years. (iii) Amounts unearned and unvested as of December 31, 1992 under the Kaiser
LTIP would be paid in options or shares of restricted stock under the Plan
following its implementation. Restrictions would be removed or options would vest as to 50% thereof in each of December
1995 and December 1996. The payments made in accordance with item (i) above were separate and apart from the Plan and
are reflected in column (h) of the Summary Compensation Table. The grants made in accordance with items (ii) and
(iii) upon Kaiser stockholders' approval of the Plan were 167,346 shares of Kaiser common stock at a dollar value of
$1,428,967 based on the average December 1992 price of $8.539 per share. Without such election
and subject to certain reductions and limitations, participants were generally
entitled to receive the vested portion of their LTIP account balances on the earlier to occur of (a) termination of
their employment, (b) termination of the LTIP if prior to December 31, 1996, or (c) April 10, 1997. Pursuant to
such election, these amounts were paid half in cash and half in restricted shares
of common stock of KAC.
(9) Pursuant to 1991 amendments, Kaiser LTIP participants were permitted to elect an accelerated payment option pursuant to
which they could receive in December 1991 and April 1992 amounts approximating 95% and 5%, respectively, of the vested
portion of the LTIP account balances (excluding bonuses previously paid), subject to certain maximum dollar
limitations. Without such accelerated payment option and subject to certain reductions and limitations, participants
were generally entitled to receive the vested portion of their LTIP account
balances on the earlier to occur of (a) termination of their employment, (b) termination
of the LTIP if prior to December 31, 1993, or (c) April 10, 1994.
(10) Amount for 1992 includes moving related items of $3,969. Remaining amount for 1992 and total amount for 1993
are contributions under the KACC 401(k) savings plan by KACC.
OPTION/SAR GRANTS TABLE
The following table sets forth certain information
concerning phantom share rights granted in fiscal year 1993 to
any of the named executive officers, of which there was only one:
Grant
Individual Grants Date Value
---------------------------------------------------------------------------------------------------- ----------------
(a) (b) (c) (d) (e) (f)
% of Total
Options/
SARS Grant
Granted to Exercise or Date
Options/SARs Employees in Base Price Expiration Present
Name Grants (#) 1993(1) ($/Share) Date Value $ (1)
----------------------------- ---------------- ---------------- ---------------- ---------------- ----------------
Charles E. Hurwitz 50,000 100% $38.50 12/9/2003 $1,338,800
<FN>
--------------------
(1) Valuation utilizing Black-Scholes Option Price Model using the following assumptions: 5-year monthly volatility,
5.92% risk-free rate (10-year Government Bond), no dividend yield and 10-year exercise or expiration date. No
adjustments were made for non-transferability or risk of forfeiture.
The SARs set forth in the above table were granted on
December 9, 1993 to Mr. Hurwitz under MAXXAM's 1984 Phantom Share
Plan. SARs under such plan are exercisable for cash, Common
Stock or a combination thereof at the discretion of the Company's
Board, and vest with respect to 20% on the anniversary date of
the grant and an additional 20% on each anniversary date
thereafter until fully vested.
In connection with the adoption of the proposed Omnibus
Plan pursuant to the Compensation Committee's recommendation, the
Board also adopted the Committee's recommendation that Mr.
Hurwitz be given the option to elect, which he so elected, to
forfeit the above SAR award in return for the grant of 50,000
SARs under the Omnibus Plan, subject to stockholder approval at
the base price equal to the closing price of the Company's Common
Stock on March 30, 1994 of $35.50. Such grant will vest with
respect to 20% on the anniversary date of the grant March 30,
1995, and an additional 20% on each anniversary date thereafter
until fully vested. Options granted after February 17, 1993
under the 1984 Phantom Stock Plan are subject to the deduction
limitations of Section 162(m) of the Code. It is intended that
compensation payable to Mr. Hurwitz by the Company under this new
grant will be deductible by the Company for Federal income tax
purposes provided the Omnibus Plan is approved by stockholders.
OPTION/SAR EXERCISES AND FISCAL YEAR END VALUE TABLE
The table below provides information on an aggregated
basis concerning each exercise of stock options (or tandem SARs)
and freestanding SARs during the fiscal year ended December 31,
1993 by each of the named executive officers, of which there was
only one, and the 1993 fiscal year-end value of unexercised
options and SARs, including SARs exercisable for cash only.
(a) (b) (c) (d) (e)
Number of Unexercised Value of Unexercised
Options/SARs in-the-Money Options/SARs
at Year End (#) at Fiscal Year-End ($) (2)
----------------------------- -----------------------------
Shares Acquired
on Value
Name Exercise (#)(1) Realized ($) Exercisable Unexercisable Exercisable Unexercisable
-------------------------- --------------- -------------- -------------- -------------- -------------- --------------
Charles E. Hurwitz 60,000 $533,475(3) -0- 50,000 -0- -0-
-- -- 31,425 53,375 $568,772 $29,953
John T. La Duc -- -- 2,000 8,000 17,750 71,000
Paul N. Schwartz -- -- 21,500 21,500 351,313 190,813
Anthony R. Pierno -- -- 26,000 7,000 53,250 17,750
Byron L. Wade -- -- 21,400 12,600 471,925 111,825
<FN>
--------------------
(1) If no shares received, the number reflected, if any, represents the number of securities with respect to which
options/SARs were exercised.
(2) Valued at $36.875, the closing price of the Company's Common Stock on the American Stock Exchange on December 31,
1993 (the "Closing Price"), less exercise price. If exercise price is lower than the Closing Price, no value is shown
with respect to such SARs/Options.
(3) Represents value received pursuant to Mr. Hurwitz's election to surrender options granted to him on December 12,
1985 under the MAXXAM Group 1976 Stock Option Plan (the "1976 Plan") with regard to 60,000 shares of MAXXAM Group Inc.
common stock, as provided in Section 9 of the 1976 Plan. Pursuant to the Merger Agreement between MAXXAM Group Inc., a
New York corporation, with the Company, upon exercise of the option for 60,000 shares of MAXXAM Group Inc. common stock,
Mr. Hurwitz was entitled to receive 15,000 shares of the Company's Common Stock, $360,000 principal amount of the
Company's 13 1/2% Senior Subordinated Reset Notes due 2000, which notes have been reset and now bear an interest rate of
14% per annum (the "Reset Notes") and $366,600 cash. However, Mr. Hurwitz elected to surrender his options for all
cash, the amount of cash to which he was entitled to receive was calculated as the difference between (a) the exercise
value and (b) the value of .25 of a share of the Company's Common Stock, $6.00 principal amount of the Reset Notes and
$6.11 cash, with the Company's Common Stock, valued at its closing price on the American Stock Exchange on the date of
surrender and the Reset Notes valued at par.
PENSION PLANS
All officers who are also employees and other regular
employees of the Company automatically participate in the
Company's Pension Plan (the "Pension Plan"), a noncontributory,
funded plan. Benefits equal the sum of an employee's "past
service benefit" and "future service benefit." Benefits are based
on an employee's base salary or wages, plus overtime (excluding
bonuses, commissions, incentive compensation and all other extra
compensation).
Under the Pension Plan, the annual past service benefit is the
greatest of
(i) benefits accrued under the plan through December 31,
1986,
(ii) the product of (a) the sum of 0.8% of the
participant's Past Service Compensation Base (as defined), plus
0.8% of his Past Service Compensation Base in excess of $15,000
multiplied by (b) his credited years of service prior to
January 1, 1987, or
(iii) the product of 1.2% of his Past Service Compensation
Base multiplied by his credited years of service prior to
January 1, 1987.
For 1987 and 1988, the annual future service benefit equaled
1.6% of an employee's compensation up to two-thirds of the Social
Security wage base, plus 2.4% of any remaining compensation.
Effective January 1, 1989, the annual future service benefit
equals 1.75% of an employee's compensation for each year of
participation, plus 0.6% of the employee's compensation in excess
of $10,000.
The amount of an employee's aggregate compensation that may be
included in benefit computations under the Pension Plan is
limited to $235,840 for 1993. This amount is reduced to $150,000
beginning in 1994. Benefits are generally payable as a lifetime
annuity or, with respect to married employees, as a 50% joint and
survivor annuity, or, if the employee elects (with spousal
consent), in certain alternative annuity forms. Benefits under
the Pension Plan are not subject to any deductions for Social
Security or other offsets. The covered compensation for 1993 and
credited years of service as of December 31, 1993 for the Pension
Plan and estimated annual benefits payable upon retirement at
normal retirement age for the named executive officers (other
than those compensated by KACC who do not participate in this
Pension Plan) were as follows: Mr. Hurwitz: $235,840--13 years-
-$110,880; Mr. Pierno: $235,840--4 years--$35,783; Mr. Schwartz:
$235,840--13 years--$110,000; and Mr. Wade: $165,833--13 years--
$91,988.
The projected benefits shown above were computed as lifetime
annuity amounts, payable beginning at age 65. The benefit
amounts reflect a covered compensation limit of $150,000 for 1994
and subsequent years under Section 401(a)(17) of the Code. In
addition, the amounts reflect a maximum benefit limit of $118,800
for 1994 and subsequent years (with early retirement reductions
where applicable) that is placed upon annual benefits that may be
paid to a participant in the Pension Plan at retirement under
Section 415 of the Code. Combined plan limits applicable to
employees participating in both defined contribution and defined
benefit plans have not been reflected.
KACC maintains a qualified, defined-benefit Retirement Plan
(the "Kaiser Retirement Plan") for salaried employees of KACC and
co-sponsoring subsidiaries who meet certain eligibility
requirements. The table below shows estimated annual retirement
benefits payable under the terms of the Kaiser Retirement Plan to
participants with the indicated years of credited service without
reduction for the limitations imposed by the Code on qualified
plans and before adjustment for the Social Security offset,
thereby reflecting cumulative benefits to be received under the
Kaiser Retirement Plan in conjunction with the Kaiser
Supplemental Benefit Plan (as defined below).
YEARS OF SERVICE
ANNUAL ------------------------------------------------------------------------
REMUNERATION 15 20 25 30 35
------------------- -------------- ------------ ----------- ------------- ------------
$125,000 $28,125 $37,500 $46,875 $56,250 $65,625
150,000 33,750 45,000 56,250 67,500 78,750
175,000 39,375 52,500 65,625 78,750 91,875
200,000 45,000 60,000 75,000 90,000 105,000
225,000 50,625 67,500 84,375 101,250 118,125
250,000 56,250 75,000 93,750 112,500 131,250
300,000 67,500 90,000 112,500 135,000 157,500
400,000 90,000 120,000 150,000 180,000 210,000
450,000 101,250 135,000 168,750 202,500 236,250
500,000 112,500 150,000 187,500 225,000 262,500
600,000 135,000 180,000 225,000 270,000 315,000
720,000 162,000 216,000 270,000 324,000 378,000
The estimated annual retirement benefits shown are based upon
the assumptions that current Kaiser Retirement Plan provisions
remain in effect, that the participant retires at age 65, and
that the retiree receives payments based on a straight life
annuity for his lifetime. Mr. La Duc had 24.3 years of credited
service on December 31, 1993. Monthly retirement benefits,
except for certain minimum benefits, are determined by
multiplying years of credited service (not in excess of 40) by
the difference between 1.50% of average monthly compensation for
the highest base period (of 36, 48 or 60 consecutive months,
depending upon compensation level) in the last 10 years of
employment and 1.25% of monthly primary Social Security benefits.
The compensation covered by the Kaiser Retirement Plan
includes base salary and bonus payments. No named executive
officer of the Company had compensation covered by the Kaiser
Retirement Plan which differed by more than 10% from that set
forth in the Summary Compensation Table (column (c) plus column
(d) thereof).
Participants are entitled to retire and receive pension
benefits, unreduced for age, upon reaching age 62 or after 30
years of credited service. Full early pension benefits (without
adjustment for Social Security offset prior to age 62) are
payable to participants who are at least 55 years of age and have
completed 10 or more years of pension service (or whose age and
years of pension service total 70) and who have been terminated
by KACC or an affiliate for reasons of job elimination or partial
disability. Participants electing to retire prior to age 62 who
are at least 55 years of age and have completed 10 or more years
of pension service (or whose age and years of pension service
total at least 70) may receive pension benefits, unreduced for
age, payable at age 62 or reduced benefits payable earlier.
Participants who terminate their employment after five years or
more of pension service, or after age 55 but prior to age 62, are
entitled to pension benefits, unreduced for age, commencing at
age 62 or actuarially reduced benefits payable earlier. For
participants with five or more years of pension service or who
have reached age 55 and who die, the Kaiser Retirement Plan
provides a pension to their eligible surviving spouses. Upon
retirement, participants may elect among several payment
alternatives including, for most types of retirement, a lump-sum
payment.
MAXXAM Supplemental Executive Retirement Plan
Effective March 8, 1991, the Company adopted an unfunded non-
qualified Supplemental Executive Retirement Plan (the "SERP").
The SERP provides that participants are entitled to receive
benefits which would have been payable to such participants under
the Pension Plan except for the limitations imposed by the Code.
Participants in such plan are selected by the Company's Board of
Directors or are entitled to participate by virtue of provisions
in their employment agreements. Only two executive officers of
the Company, Messrs. Schwartz and Pierno, were entitled to
receive benefits under the SERP during 1993.
The following projections are based on the same assumptions as
utilized in connection with the Pension Plan projections above.
The 1994 qualified plan pay limit ($150,000) and benefit limit
($118,800) are reflected for all years in the future. In
addition, no future increases in the participants' covered
compensation amounts from the 1993 levels are assumed.
Pierno Schwartz
------------ ------------
COVERED COMPENSATION FOR 1993:
Qualified Plan $ 235,840 $ 235,840
Nonqualified Plan 85,392 20,370
------- ------
Total $ 321,232 $ 256,210
======= =======
CREDITED YEARS OF SERVICE AS OF 4 13
DECEMBER 31, 1993
PROJECTED NORMAL RETIREMENT
BENEFIT:
Qualified Plan $ 35,873 $ 110,000
Nonqualified Plan 18,778 43,380
------ ------
Total $ 54,561 $ 153,380
====== =======
Kaiser Supplemental Benefits Plan
KACC maintains an unfunded, non-qualified Supplemental
Benefits Plan (the "Kaiser Supplemental Benefits Plan"), the
purpose of which is to restore benefits which would otherwise be
paid from the Kaiser Retirement Plan or the Supplemental Savings
and Retirement Plan, a qualified Section 401(k) plan (the "Kaiser
Savings Plan"), were it not for the limitations imposed by the
Code. Participation in the Kaiser Supplemental Benefits Plan
includes all employees of KACC and its subsidiaries whose
benefits under the Kaiser Retirement Plan and Kaiser Savings Plan
are likely to exceed the maximum dollar limitations imposed by
the Code.
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT AND CHANGE-IN-
CONTROL ARRANGEMENTS
Mr. Pierno and the Company entered into a five-year employment
agreement effective as of March 8, 1990. Pursuant to the terms
of the agreement, Mr. Pierno was entitled during 1993 to a base
salary of $331,511 per year, which amount is increased annually
by an amount not less than the increase in the Consumer Price
Index for that year. The agreement provided for a bonus for the
year 1992 in an amount not less than 75% and not more than 125%
of Mr. Pierno's then base salary. Although the agreement
specifies no bonus percentage for the years 1993 and 1994, a
bonus as reflected in the Summary Compensation Table was paid
during 1993, and in the employment agreement the Company
expresses an intent to pay a bonus during 1994 in the same
percentage range. The agreement also entitles Mr. Pierno to
participate in employee benefit plans and programs applicable to
senior executives of the Company.
Mr. Schwartz and the Company entered into a five-year
employment agreement effective as of March 8, 1990. Pursuant to
the terms of the agreement, Mr. Schwartz was entitled during 1993
to a base salary of $264,409 per year, which amount is increased
annually by an amount not less than the increase in the Consumer
Price Index for that year. The agreement provided for a bonus
for the year 1992 in an amount not less than 75% and not more
than 125% of Mr. Schwartz' then base salary. Although the
agreement specifies no bonus percentage for the years 1993 and
1994, a bonus as reflected in the Summary Compensation Table was
paid during 1993 and in the agreement the Company expresses an
intent to pay a bonus during 1994 in the same percentage range.
The agreement also entitles Mr. Schwartz to participate in
employee benefit plans and programs applicable to senior
executives of the Company.
Mr. La Duc held the positions of Senior Vice President and
Chief Financial Officer of the Company and Vice President and
Chief Financial Officer of Kaiser and KACC pursuant to an
employment agreement among the Company, KACC and Mr. La Duc,
which commenced September 26, 1990, and expired December 31,
1993. The agreement provided for a base salary of $190,000, with
any increases at the discretion of the Company and KACC.
Currently, Mr. La Duc continues in his employment in such
positions with the Company, Kaiser and KACC. Subject to
limitations pursuant to the LTIP, an annual bonus may be paid
under the terms of the Kaiser Bonus Plan. Mr. La Duc is eligible
to participate in the employee benefit plans and programs
maintained by KACC as from time to time in effect applicable to
senior executives of KACC, including, but not limited to, the
LTIP and the Kaiser 1993 Omnibus Incentive Stock Option Plan.
Mr. Wade and the Company entered into a five-year employment
agreement effective as of March 8, 1990. Pursuant to the terms
of the agreement, Mr. Wade was entitled during 1993 to a base
salary of $171,140 per year, which amount is increased annually
by an amount not less than the increase in the Consumer Price
Index for that year. The agreement provided for a bonus for the
year 1992 in an amount not less than 50% and not more than 100%
of Mr. Wade's then base salary. Although the agreement specifies
no bonus percentage for the years 1993 and 1994, a bonus as
reflected in the Summary Compensation Table was paid during 1993
and in the agreement the Company expresses an intent to pay a
bonus during 1994 in the same percentage range. The agreement
also entitles Mr. Wade to participate in employee benefit plans
and programs applicable to senior executives of the Company,
and designates Mr. Wade as a participant in the SERP.
COMPENSATION COMMITTEE REPORT
ON
EXECUTIVE COMPENSATION
The Compensation Committee (the "Committee") of MAXXAM Inc.
(the "Company") consists of Messrs. Cruikshank, Levin and
Rosenberg. Members of the Committee annually stand for
appointment by the Company's Board of Directors. The most recent
appointments were in May 1993 for Messrs. Levin and Rosenberg,
and December 1993 for Mr. Cruikshank when he first joined the
Committee. Annually, the Committee reviews and approves
proposals which cover the initiation, modification or termination
of benefit plans, salaries or other compensation for all
executive officers. The Committee reviews plans for the Company,
The Pacific Lumber Company, MAXXAM Property Company and the
Company's other participating subsidiaries. This Committee does
not review the plans of Kaiser Aluminum Corporation or its
subsidiaries.
The Committee also has responsibility for reviewing proposals
for initiation, modification or termination of the qualified
retirement plans and welfare plans for the companies indicated
above, unless these functions are performed by specific
committees, i.e, administrative and investment committees from
such plans. Employee benefit plans, compensation programs and
executive employment agreements are generally prepared or
negotiated at the direction or with the prior knowledge of the
Committee and are reviewed and approved by the Committee.
In performing its responsibilities, the Committee frequently
obtains recommendations from management, particularly from the
Company's Chief Executive Officer ("CEO"), and occasionally from
other executive officers of the Company. In formulating
management's recommendations, the Company's executive officers
from time to time have studied reports appearing in human
resources and executive compensation literature as well as
studies and recommendations from outside consulting firms
prepared specifically for the Company.
The elements of executive compensation utilized by the Company
consist principally of a base salary and an annual bonus.
Bonuses are discretionary, except as provided in certain written
employment agreements previously approved by the Committee or the
Board of Directors. From time to time, the Committee also
recommends or approves participation by selected executives in
certain additional incentive compensation programs such as the
Company's 1984 Phantom Share Plan.
The employment agreements of certain of the executive officers
of the Company have five year terms and were negotiated prior to
the relocation of the Company's corporate offices from Los
Angeles to Houston in 1989. The ranges for the incentive awards
as well as the stock-based incentive awards were established
during these negotiations by the CEO and approved by the
Committee. In some instances, the Company also expressed its
intention in written agreements to compensate particular
executives with bonuses on a certain basis or at a certain level.
Factors considered by the Committee in approving these employment
agreements were the relevant executive's compensation history,
particular talents and responsibilities, and relative
contributions to the Company. Bonus levels provided for in the
agreements were generally established as a percentage of salary
with a view that bonuses play an important role in total annual
compensation. Specifically, Senior Vice Presidents relocating
from Los Angeles to Houston were entitled to initial bonus levels
from 75% to 125% of their respective annual salaries. Vice
Presidents relocating from Los Angeles to Houston were entitled
to a bonus range of 50% to 100% of their respective annual
salaries. The Company, since entering into such agreements, has
awarded bonuses at the lower ranges of such levels. These
employment agreements were entered into in order to assure
continued employment of such executives in their respective
capacities, and in order to procure for the Company their
continuing commitments for that period of time. In recent years,
specific determinations as to executive compensation have been
based primarily on the level of achievement by the Company toward
its corporate objectives, individual performance and assumption
of additional duties or responsibilities by the particular
executive.
At fiscal year-end, base salaries for employees earning
$100,000 or more are reviewed individually and recommendations as
to increases are made by the Committee. For the most part, these
increases have been the average of the U.S. Consumer Price Index.
In general, bonuses granted by the Company are discretionary.
When granted, bonus amounts paid by the Company are approved by
the Committee for employees who generally earn at least $75,000
per year. Certain of the Company's executive officers were or
are compensated principally by a majority owned subsidiary of the
Company, Kaiser Aluminum & Chemical Corporation ("KACC"), which
establishes salaries and other elements of compensation for such
executive officers. Where an executive officer of both the
Company and KACC is compensated by KACC (such as Mr. La Duc), or
where an executive officer of both the Company and KACC is
compensated by the Company (such as Messrs. Pierno and Wade), the
respective corporations make intercompany allocations of the
costs of employment of the executive officer based on an
allocation of that executive officer's time as expended among the
Company or KACC and respective subsidiaries.
The Committee acknowledges that the Company's particular
origins and management are unique in that it consists of units
operating in three wholly separate industries: aluminum, forest
products and real estate. In 1993, subsidiaries of the Company
acquired various interests in a Class I horse racing facility
under construction in Harris County, Texas ("Sam Houston Race
Park"). Many of the Company's executives also serve in executive
capacities in some or all of its operating subsidiaries in the
varying industries. While the Company's annual earnings are a
primary focus, its principal objective for the past decade has
been the enhancement of stockholder value which is measured only
in part by current earnings. The Company was one of the
country's fastest-growing major corporations during the past ten
years. That growth was accomplished primarily through
acquisitions, and the Company's executives have responsibilities
related to corporate development through acquisition and
assimilation of operating businesses that are additional to the
responsibilities of most executives at corporations of comparable
size. Accordingly, the Committee recognizes that the particular
talents of its executives in building the Company's asset base,
in expanding into new business segments and in assimilating
acquired businesses, is not necessarily tied to current earnings.
That factor presents a particular challenge for the Committee in
determining appropriate approaches to executive compensation.
For those executive officers of the Company not covered by an
employment agreement, the Company's executive compensation
philosophy is to pay base salaries adequate to attract and retain
executives whose education, training, experience, talents and
particular knowledge of the Company, its businesses and
industries allow them to be key contributors to the
administration, management and operations of the Company.
Generally, the Company and the Committee utilize annual bonuses
as the primary incentive and recognition for particular
contributions, efforts and results pertaining to a particular
time period, project or accomplishment of executive officers.
The Company has not awarded across-the-board stock-based
incentives to its executives since mid-1989. Since that time,
the Company has only rarely awarded such incentives, and then on
selective and particular situation basis in connection with
assumption of additional duties or corporate roles by executives,
or in connection with negotiated employment agreements as
previously discussed.
DISCRETION OF THE COMMITTEE
The Committee deems it necessary and appropriate to retain
broad discretion as to the types and levels of compensation for
its executive officers. The Committee considers factors such as
the cost of living, compensation practices at other corporations
with which its individual directors are familiar and such other
objective and quantitative factors as it deems relevant. Among
such factors are the compensation levels and determinations made
by its principal operating units with respect to compensation of
their executives. Due to recent tax law changes as well as the
Committee's desire to value executive compensation levels
appropriately, the Committee has asked management to assist it in
re-evaluating a recent compensation study conducted to determine
its appropriateness in today's environment. This re-evaluation
is moving forward with an expected completion in third quarter of
1994. Because of the range and varying nature of the duties of
the Company's executive officers, the Committee considers non-
quantitative and subjective factors unique to the Company,
including individual talents and performance perceived by
management and by the Committee. It is mindful that activities
in one year may relate to results achieved in another year and
that, particularly with respect to certain responsibilities,
services provided during difficult times may be more exacting and
require more effort and therefore, call for equal or greater
compensation than that provided in periods yielding better
results. The Committee generally meets three to four times per
year and makes its final determinations as to salaries and
bonuses, as well as to compensation of the CEO, in executive
sessions where persons affected by its decisions are not present.
COMPENSATION OF THE CHIEF EXECUTIVE OFFICER FOR THE LAST
COMPLETED FISCAL YEAR
Mr. Hurwitz is the Company's principal business strategist and
the Committee believes that his talents and efforts have been a
primary cause of the Company's extraordinary growth. The
Committee approved a salary increase of 3.2% for Mr. Hurwitz in
December of 1993. This was the same percentage of increase
generally provided to the Company's executive officers and other
employees. During 1993, Mr. Hurwitz was additionally responsible
for several major projects moving the Company forward. The first
project involved the Company's acquisition of its interests in
and becoming a driving force behind Sam Houston Race Park, an
investment which is expected to bring substantial financial
benefit to the Company. The second project involved the
successful completion of public offerings of securities
aggregating in excess of $1.5 billion during 1993, effectively
restructuring or refinancing most of the Company's debt on terms
which significantly lowered the Company's borrowing costs and
extended maturities. The Committee determined that Mr. Hurwitz
should be rewarded with additional compensation for his efforts
on these projects. The Committee took into consideration various
factors to determine what amount and form such additional
compensation should be. Among the factors considered were (i)
the general level of salary and bonuses paid to Mr. Hurwitz in
recent years, (ii) the benefit plans available as a vehicle for
the extra compensation, (iii) whether the additional compensation
should be current or deferred, and (iv) the level of additional
compensation which would serve as an incentive for Mr. Hurwitz to
render similar performances in the future but which would still
take into account the Company's 1993 financial results. After
due consideration, the Committee concluded that it was
appropriate to award Mr. Hurwitz a grant of 50,000 Phantom Share
Rights under the Company's 1984 Phantom Rights Plan at an
exercise price equal to the closing price of the Company's Common
Stock on the American Stock Exchange on the day of the meeting,
December 9, 1993. Such award was unanimously approved by the
Committee. The Committee also approved a bonus in the amount of
$500,000, with $100,000 of the payment deferred into future
years.
COMPLIANCE WITH INTERNAL REVENUE CODE SECTION 162(M)
Effective January 1, 1994, Section 162(m) of the Code
generally disallows a tax deduction to public companies for
compensation over $1 million paid to the Chief Executive Officer
and four other most highly compensated executive officers of such
corporations. Qualifying performance-based compensation will not
be subject to the deduction limit if certain requirements are
met.
On March 30, 1994, the Committee recommended to the Board of
Directors that the MAXXAM 1994 Executive Bonus Plan and the
MAXXAM 1994 Omnibus Employee Incentive Plan be adopted and
submitted to the stockholders of the Company for approval at the
1994 Annual Meeting of Stockholders. Such plans are designed to
comply with Section 162(m) of the Code and the proposed
regulations thereunder. Prior to 1994 fiscal year-end, the
Committee intends to re-evaluate the Company's compensation
structure in light of the status of such proposed regulations and
to act accordingly.
The Company currently intends to structure the performance-
based portion of compensation (which currently consists of stock
option grants and the discretionary annual bonuses described
above) in a manner that complies with the new statute and
proposed regulations thereunder for those executive officers of
the Company prior to such fiscal year as such officers may become
subject to such deduction limitation.
Compensation Committee
of the Board of Directors
Robert J. Cruikshank
Ezra G. Levin, Chairman
Stanley D. Rosenberg
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
No member of the Compensation Committee of the Board of
Directors of the Company was, during the 1993 fiscal year, an
officer or employee of the Company or any of its subsidiaries, or
was formerly an officer of the Company or any of its
subsidiaries; however, two members had relationships requiring
disclosure by the Company under Item 404 of Regulation S-K.
Messrs. Levin and Connally served on the Company's Compensation
Committee and Board during 1993. Mr. Levin is also a partner in
the law firm of Kramer, Levin, Naftalis, Nessen, Kamin & Frankel,
which provided legal services for the Company and its
subsidiaries during 1993. Mr. Connally's consulting agreement
with the Company's subsidiary, MGI, under which he received
$250,000 in consulting fees annually, was renewed during 1992 and
was effective until June 1993.
During the Company's 1993 fiscal year, no executive officer of
the Company served as (i) a member of the compensation committee
(or other board committee performing equivalent functions) of
another entity, one of whose executive officers served on the
Compensation Committee of the Board of Directors, (ii) a director
of another entity, one of whose executive officers served on the
Compensation Committee of the Company, or (iii) a member of the
compensation committee (or other board committee performing
equivalent functions) of another entity, one of whose executive
officers served as a director of the Company.
PERFORMANCE GRAPH
The following performance graph compares the cumulative total
stockholder return on the Company's Common Stock with the
cumulative total returns of the S&P 500 Stock Index and two peer
groups consisting of companies included by S&P in its published
indices for the Aluminum Industry and the Paper and Forest
Products Industry for the Company's last five fiscal years. The
graph assumes that the value of the investment in the Company's
Common Stock and each index was $100 at December 31, 1988, and
that all dividends were reinvested. The data points are
calculated as of the last trading day for the year indicated.
1988 1989 1990 1991 1992 1993
------------ ------------ ------------ ------------- ------------ -------------
MAXXAM Inc. 100 192.82 127.69 120.51 112.82 150.77
S&P 500 Index 100 131.69 127.60 166.47 179.15 197.21
S&P Aluminum Industry Index 100 119.51 107.67 116.22 118.98 121.81
S&P Paper and Forest Products 100 121.28 109.57 138.98 158.91 175.13
Industry Index
The Company is involved in the real estate industry in
addition to the aluminum and forest product industries. However,
the real estate unit of the Company accounts for less than 5% of
the Company's gross revenues on a consolidated basis, and
therefore, a line-of-business index for such industry is not
utilized.
CERTAIN TRANSACTIONS
For periods through June 30, 1993, Kaiser and its subsidiaries
(including KACC) were members of an affiliated group of
corporations (an "Affiliated Group") within the meaning of
Section 1504 of the Code of which the Company is the common
parent corporation (the "MAXXAM Tax Group"). Effective July 1,
1993, Kaiser and its subsidiaries are no longer members of the
MAXXAM Tax Group (the "Deconsolidation") but are members of a new
Affiliated Group of which Kaiser is the common parent corporation
(the "New Kaiser Tax Group"). The taxable income and loss and
tax credits for Kaiser and its subsidiaries for the period
January 1, 1993 through June 30, 1993, will be included in the
1993 MAXXAM Tax Group consolidated Federal income tax return (the
"MAXXAM 1993 Tax Return"). For periods beginning on or after
July 1, 1993 (the "Post Deconsolidation Periods"), the taxable
income and loss and tax credits for Kaiser and its subsidiaries
will be included in the consolidated Federal income tax returns
to be filed for the New Kaiser Tax Group.
As a consequence of the Deconsolidation, the KACC Tax
Allocation Agreement (as defined below) and the Kaiser Tax
Allocation agreement (as defined below) (collectively, the "Tax
Allocation Agreements") terminated pursuant to their terms,
effective with respect to Post Deconsolidation Periods. The
provisions of the Tax Allocation Agreements will continue to
govern taxable periods ending before the date of the
Deconsolidation (the "Pre Deconsolidation Periods"). Therefore,
payments or refunds may still be required by or payable to Kaiser
or KACC under the Tax Allocation Agreements for Pre
Deconsolidation Periods due to the final resolution of audits,
amended returns and related matters with respect to such Pre
Deconsolidation Periods. However, Kaiser's and KACC's bank
credit agreement dated as of February 15, 1994 (the "Credit
Agreement") prohibits any payments by KACC to the Company
pursuant to the KACC Tax Allocation Agreement after February 15,
1994, however, the Company may offset amounts owing to it against
amounts owed by it under the KACC Tax Allocation Agreement, and
KACC may make certain payments that are required as a result of
audits of the Company's tax returns and only to the extent of any
amounts paid after February 15, 1994 by the Company to KACC under
the KACC Tax Allocation Agreement. To the extent the New Kaiser
Tax Group generates unused tax losses or tax credits in Post
Deconsolidation Periods, such amounts will not be available to
obtain refunds of amounts paid by Kaiser or KACC to the Company
for Pre Deconsolidation Periods pursuant to the Tax Allocation
Agreements. It is anticipated that such losses and credits will
be carried forward to offset future Federal income taxes payable
by the New Kaiser Tax Group.
Any unused tax attribute carryforwards existing as of the date
of the Deconsolidation under the terms of the Tax Allocation
Agreements will be eliminated and will not be available to offset
Federal income tax liabilities of the New Kaiser Tax Group for
Post Deconsolidation Periods. Upon the filing of the MAXXAM 1993
Tax Return, the tax attribute carryforwards of the MAXXAM Tax
Group as of December 31, 1993 will be apportioned in part to the
New Kaiser Tax Group, based upon the provisions of the relevant
consolidated return regulations. It is anticipated that the
amounts of such tax attribute carryforwards apportioned to the
New Kaiser Tax Group will approximate or exceed the amounts of
tax attribute carryforwards eliminated under the Tax Allocation
Agreements. Although the amounts of tax attribute carryforwards
apportioned to the New Kaiser Tax Group will be determined as of
December 31, 1993, they are available, subject to certain
limitations, to reduce Federal income taxes payable by the New
Kaiser Tax Group for Post Deconsolidation Periods.
In 1989, KACC and the Company entered into a tax allocation
agreement (the "KACC Tax Allocation Agreement"). Pursuant to the
terms of the KACC Tax Allocation Agreement, the Company pays any
consolidated Federal income tax liability for the MAXXAM Tax
Group. KACC is liable to the Company for the Federal income tax
liability of KACC and its subsidiaries (collectively, the "KACC
Subgroup") computed as if the KACC Subgroup were a separate
Affiliated Group which was never affiliated with the MAXXAM Tax
Group (taking into account all limitations under the Code and
regulations applicable to the KACC Subgroup), except that the
KACC Subgroup excludes interest income received or accrued on an
intercompany note issued by Kaiser in connection with a financing
consummated in December 1989 (the "KACC Subgroup's Separate
Income Tax Liability"). To the extent such calculation results
in a net operating loss or a net capital loss or credit which the
KACC Subgroup could have carried back to a prior taxable period
under the principles of Sections 172 and 1502 of the Code, the
Company pays to KACC an amount equal to the tax refund to which
KACC would have been entitled (but not in excess of the aggregate
net amount previously paid by KACC to the Company for the current
year and the three prior years). If such separately calculated
net operating loss or net capital loss or credit of the KACC
Subgroup cannot be carried back to a prior taxable year of the
KACC Subgroup for which the KACC Subgroup paid its separate tax
liability to the Company, the net operating loss or net capital
loss or credit becomes a loss or credit carryover of the KACC
Subgroup to be used in computing the KACC Subgroup's Separate
Income Tax Liability for future taxable years. The same
principles are applied to any consolidated or combined state or
local income tax returns filed by the MAXXAM Tax Group with
respect to KACC and its subsidiaries. Although, under Treasury
regulations, all members of the MAXXAM Tax Group, including the
members of the KACC Subgroup, are severally liable for the MAXXAM
Tax Group's Federal income tax liability for all of 1993 and
applicable prior periods, under the KACC Tax Allocation
Agreement, the Company indemnifies each KACC Subgroup member for
all Federal income tax liabilities relating to taxable years
during which such KACC Subgroup member was a member of the MAXXAM
Tax Group, except for payments required under the KACC Tax
Allocation Agreement.
During 1992, under the KACC Tax Allocation Agreement, KACC
made a payment to the Company of $28.0 million in respect of the
year ended December 31, 1991. The eighth amendment dated as of
January 7, 1993 (the "Eighth Amendment") to Kaiser's and KACC's
former credit agreement (the "1989 Credit Agreement") prohibited
the payment by KACC to the Company of any additional amounts due
under the KACC Tax Allocation Agreement until December 15, 1994.
The Company estimates that KACC owes the Company approximately
$8.7 million in respect of the year ended December 31, 1992.
Inasmuch as KACC has recorded tax losses in the period January 1,
1993 through June 30, 1993, and such losses will be carried back
to prior taxable periods under the terms of the KACC Tax
Allocation Agreement, it is estimated that the Company owes KACC
approximately $20.0 million with respect to such losses.
In 1991, the Company also entered into a tax allocation
agreement with Kaiser (the "Kaiser Tax Allocation Agreement").
Pursuant to the terms of the Kaiser Tax Allocation Agreement, the
Federal income tax liability of Kaiser and its subsidiaries
(collectively, the "Kaiser Subgroup") is computed using the same
principles used in the KACC Tax Allocation Agreement to determine
the KACC Subgroup's income tax liability. To the extent such tax
liability ("Kaiser's Separate Income Tax Liability") for any
applicable period exceeds the KACC Subgroup's Separate Income Tax
Liability for such period, Kaiser is obligated to pay the amount
of such difference to the Company. To the extent that Kaiser's
Separate Income Tax Liability for any applicable period is less
than the KACC Subgroup's Separate Income Tax Liability for such
period, the Company is obligated to pay the amount of such
difference to Kaiser (but not in excess of the aggregate net
amount previously paid by Kaiser and KACC to the Company for the
current year and the three prior years). The foregoing
principles are also applied to any consolidated or combined state
or local income tax returns filed by the MAXXAM Tax Group with
respect to Kaiser. While Kaiser is severally liable for the
MAXXAM Tax Group's Federal income tax liability for all of 1993
and applicable prior periods, pursuant to the Kaiser Tax
Allocation Agreement, the Company indemnifies Kaiser according to
the same principles as those applied to KACC Subgroup members
under the KACC Tax Allocation Agreement.
During 1992, under the Kaiser Tax Allocation Agreement, the
Company made a payment to Kaiser of $45,000 in respect of the
year ended December 31, 1991. The Company estimates it owes
Kaiser in respect of the year ended December 31, 1992 and for the
period January 1, 1993 through the date of the Deconsolidation
approximately $84,000 and $42,000, respectively.
Under the current consolidated return regulations, the
Deconsolidation caused certain tax basis adjustments and the
recognition of certain types of taxable income (including amounts
that were previously deferred), none of which the Company
believes to be material.
On June 30, 1993, Kaiser and KACC entered into a tax
allocation agreement (the "New Tax Allocation Agreement")
effective for Post Deconsolidation periods. The terms of the New
Tax Allocation Agreement are identical in all material respects
to those of the KACC Tax Allocation Agreement except that KACC is
liable to Kaiser.
The Company and KACC have an arrangement pursuant to which
they reimburse each other for certain allocable costs associated
with the performance of services by their respective employees,
and KACC also pays to the Company amounts in respect of
directors' fees for directors of KACC who are not employees of
KACC and who are directors of the Company. During 1993, KACC
paid a total of approximately $2.0 million to the Company
pursuant to such arrangements and the Company paid approximately
$0.8 million to KACC pursuant to such arrangements.
As a condition to the effectiveness of the Eighth Amendment, a
subsidiary of the Company made a loan to KACC on January 14, 1993
in the principal amount of $15.0 million evidenced by a
promissory note (the "MAXXAM Note"). On June 30, 1993, the
MAXXAM Note was exchanged for 2,132,950 $.65 Depositary Shares of
Kaiser. Kaiser made a capital contribution of the MAXXAM Note to
KACC, which resulted in the extinguishment of the MAXXAM Note.
Kaiser did not declare any dividends on its common stock
during 1993.
On December 15, 1992, KACC issued a note (the "PIK Note") to a
subsidiary of the Company in the principal amount of $2.5
million, representing the entire amount of a dividend received by
such subsidiary in respect of the shares of Kaiser's common stock
which it owned. The PIK Note bears interest, compounded
semiannually, at a rate equal to 12% per annum, and is due and
payable, together with accrued interest thereon, on June 30,
1995. KACC is not required to make any payment of principal of
or interest on the PIK Note prior to June 30, 1995. However, to
the extent not prohibited by the Credit Agreement, KACC may be
required to prepay the PIK Note upon demand. The Credit
Agreement currently prohibits the payment of principal and
interest on the PIK Note except at the maturity thereof.
In April 1989, an action was filed against the Company, MGI,
MAXXAM Properties Inc. ("MPI") and certain of the Company's
directors in the Court of Chancery of the State of Delaware,
entitled Progressive United Corporation v. MAXXAM Inc., et al.,
Civil Action No. 10785. Plaintiff purports to bring this action
as a stockholder of the Company derivatively on behalf of the
Company and MPI. In May 1989, a second action containing
substantially similar allegations was filed in the Court of
Chancery of the State of Delaware, entitled Wolf v. Hurwitz, et
al. (No. 10846) and the two cases were consolidated
(collectively, the "Zero Coupon Note" actions). The Zero Coupon
Note actions relate a Put and Call Agreement entered into between
MPI and Mr. Charles Hurwitz (Chairman of the Board of the
Company, MGI and MPI), as well as a predecessor agreement (the
"Prior Agreement"). Among other things, the Put and Call
Agreement provided that Mr. Hurwitz had the option (the "Call")
to purchase from MPI certain notes (or the common stock of the
Company into which they were converted) for $10.3 million. In
July 1989, Mr. Hurwitz exercised the Call and acquired 990,400
shares of the Company's common stock. The Zero Coupon Note
actions generally allege that in entering into the Prior
Agreement Mr. Hurwitz usurped a corporate opportunity belonging
to the Company, that the Put and Call Agreement constituted a
waste of corporate assets of the Company and MPI, and that the
defendant directors breached their fiduciary duties in connection
with these matters. Plaintiffs seek to have the Put and Call
Agreement declared null and void, among other remedies.
In May 1991, a derivative action entitled Progressive United
Corporation v. MAXXAM Inc., et al. (No. 12111) ("Progressive
United") was filed in the Court of Chancery, State of Delaware
against the Company, Federated Development Company ("Federated"),
MCO Properties Inc. ("MCOP"), a wholly owned subsidiary of the
Company, and the Company's Board of Directors. The action
alleges abuse of control and breaches of fiduciary obligations
based on, and unfair consideration for, the Company's Agreement
in Principle with Federated to (a) forgive payments of principal
and interest of approximately $32.2 million due from Federated
under two loan agreements entered into between MCOP and Federated
in 1987, and (b) grant an additional $11.0 million of
consideration to Federated, in exchange for certain real estate
assets valued at approximately $42.9 million in Rancho Mirage,
California, held by Federated (the "Mirada transactions"). See
Note 10 to the Consolidated Financial Statements for a
description of the Exchange to which this action and the actions
referenced below relate. Plaintiff seeks to have the Agreement
in Principle rescinded, an accounting under the loan agreements,
repayment of any losses suffered by the Company or MCOP, costs
and attorneys fees.
The following six additional lawsuits similar to the
Progressive United case were filed in Delaware Chancery Court
challenging the now-completed Mirada transactions action has
been: NL Industries, et al. v. MAXXAM Inc., et al. (No. 12353);
Kahn, et al. v. Federated Development Company, et al. (No.
12373); Thistlethwaite, et al. v. MAXXAM Inc., et al. (No.
12377); Glinert, et al. v. Hurwitz, et al. (No. 12383); Friscia,
et al. v. MAXXAM Inc., et al. (No. 12390); and Kassoway, et al. v
MAXXAM Inc., et al. (No. 12404). The Kahn, Glinert, Friscia and
Kassoway actions have been consolidated with the Progressive
United action into In re MAXXAM Inc./Federated Development
Shareholders Litigation (No. 12111); the NL Industries action has
been "coordinated" with the consolidated actions; the
Thistlethwaite action has been stayed pending the outcome of the
consolidated actions. In January 1994, a derivative action
entitled NL Industries, Inc., et al. v. Federated Development
Company, et al. (No. 94-00630) was filed in the District Court of
Dallas County, Texas, against MAXXAM (as nominal defendant) and
Federated. This action contains allegations and seeks relief
similar to that contained in the In re MAXXAM Inc./Federated
Development Shareholders Litigation.
During 1993, the Company and certain of its subsidiaries
shared certain administrative and general expenses with
Federated. Under these arrangements, Federated's obligations to
the Company and its subsidiaries was approximately $49,464.
During 1993, Federated and the Company shared office space
leased by the Company. The obligations of Federated relating to
1993 under such sharing arrangement amounted to $15,156.
Mr. Levin, a director of the Company, is a partner in the law
firm of Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, which
provides legal services for the Company and its subsidiaries.
The Company has been billed by such firm an aggregate of
approximately $2,831,000 for fees and approximately $235,000 for
disbursements and other charges with respect to legal services
rendered by such firm during 1993 for the Company and its
subsidiaries. As a matter of practice, Mr. Levin pays to such
firm all directors' and committee fees received by him, and the
firm credits such fees against its charges for services rendered
to the Company and its subsidiaries.
In August 1990, two real estate ventures holding unimproved
real property in which Mr. Rosenberg was a general partner filed
voluntary petitions for bankruptcy under Chapter 11 of the Code
in the United States Bankruptcy Court for the Western Division of
Texas. One plan was successfully confirmed and implemented. In
the second filing, a plan has been confirmed.
On November 30, 1991, the Company reached an agreement with
one of its wholly owned subsidiaries, Bering Holdings, Inc.
("Bering Holdings"), a Texas registered Investment Advisor. The
agreement provides for an annual management fee equal to 1% of
the average value of the accounts under management except for
certain managed short-term investments for which Bering Holdings
receives 1/2 of 1% per annum. The agreement also provides for
an annual performance fee equal to 10% of the net gain in certain
of the accounts. Bering Holdings also manages Federated
investments pursuant to a similar arrangement. Management and
performance fees accrued to be paid by Federated for 1993 were
approximately $53,318 and $82,716, respectively.
In January 1994, the Company entered into a commercial
guaranty of payment (the "Guaranty") of a promissory note dated
January 28, 1994, in the original principal amount of $150,000
issued by Mr. Anthony R. Pierno, Senior Vice President and
General Counsel of the Company, to Charter National Bank--
Houston. The Guaranty is subject to an agreement between the
Company and Mr. Pierno that any payment by the Company under the
Guaranty shall be offset in like amount plus interest at 12% per
annum from the date of payment on the Guaranty to the date of
payment to the Company by Mr. Pierno. Such offset may be made
from any payments due Mr. Pierno from the Company that lawfully
may be the subject of such offset, including any payment under
any compensation arrangement or employee benefit plan. The
Guaranty was entered into by the Company for the convenience of
Mr. Pierno and replaces a previous guaranty with substantially
the same terms entered into in February 1993 in respect of a
promissory note dated January 28, 1993.
Pursuant to the terms of Mr. Pierno's employment agreement
with the Company, his personal loans outstanding on the date of
the agreement are forgiven at the rate of $15,000 per year
beginning March 8, 1991, with any remaining balance being due and
payable upon Mr. Pierno's termination of employment. At the time
of the agreement, the Company had loaned an aggregate of $150,000
at 6% interest to Mr. Pierno. The current principal balance on
such loans as of March 15, 1994 was $90,000. Such loans are
payable on demand, require monthly interest payments and are
secured by real estate owned by Mr. Pierno. The agreement also
provided for up to an additional $200,000 in loans to Mr. Pierno
bearing interest at 6% per annum, with interest being payable
monthly and principal being due December 15, 1994 (with
prepayments due upon the exercise by Mr. Pierno of any SARs
granted pursuant to the agreement or employee benefit plan). All
of such amount has been borrowed by Mr. Pierno.
Pursuant to the terms of Mr. Schwartz's employment agreement,
his personal loans outstanding on the date of the agreement
are forgiven at the rate of $20,000 per year beginning
March 8, 1991, with any remaining balance being due and payable
upon Mr. Schwartz' termination of employment. The agreement also
provided for additional loans to Mr. Schwartz, all of which were
received by Mr. Schwartz in 1990. Mr. Schwartz currently has
$195,000 in principal amount of loans outstanding at 6%
interest, which interest is payable monthly. $70,000 of
principal on such loans is payable on demand (unless forgiven as
indicated above). In December 1993, Mr. Schwartz repaid $75,000
of the outstanding principal balance of a loan, leaving a balance
of $125,000 outstanding which is payable on December 15, 1994
(with prepayments due upon the exercise of certain SARs). The
loans are secured by real estate owned by Mr. Schwartz.
In July 1993, the Company loaned Mr. Wade $100,000 pursuant to
the terms of an unsecured promissory note which bore interest at
an annual rate of 6%. The loan was repaid within approximately
ten days with a cash payment of $50,000 and a new unsecured
promissory note for $50,000, interest on which is payable monthly
at an annual rate of 6%. The new note is payable upon the
earliest to occur of July 20, 1998 or Mr. Wade's termination of
employment with the Company. In December 1993, Mr. Wade repaid
$30,000 of the outstanding principal balance of the note, leaving
a balance of $20,000 outstanding.
The Company or its subsidiaries have made loans to certain of
the executive officers of the Company in addition to the loans
described above. As of December 31, 1993, two executive officers
of the Company not named in the Summary Compensation Table have
such loans outstanding in the aggregate amount of $161,000 at
annual rates ranging from 6% to 8.63%. Generally, each such loan
requires annual interest payments, is secured by real estate
owned by the officer and the principal is payable on demand.
The Company believes that each of the transactions described
herein under "Certain Transactions" are on terms as favorable to
the Company as would have been available from unrelated parties.
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT
Based solely upon a review of the copies of the Forms 3, 4 and
5 and any amendments thereto furnished to the Company with
respect to its most recent fiscal year, and written
representations from certain reporting persons that no Forms 5
were required, the Company believes that all filing requirements
were complied with applicable to its officers, directors and
greater than ten percent beneficial owners.
OTHER MATTERS
INDEPENDENT PUBLIC ACCOUNTANTS
The Company has appointed Arthur Andersen & Co. as its
independent public accountants through the conclusion of the
audit with respect to the Company's 1993 fiscal year.
Representatives of Arthur Andersen & Co. plan to attend the
Annual Meeting of Stockholders and will be available to answer
appropriate questions. Such representatives will also have an
opportunity to make a statement at the meeting, if they so
desire.
STOCKHOLDER PROPOSALS FOR THE 1995 ANNUAL MEETING OF STOCKHOLDERS
Stockholder proposals intended to be presented at the 1995
Annual Meeting of Stockholders must be received at the Company's
executive offices at 5847 San Felipe, Suite 2600, Houston, Texas
77057 by [January 1, 1995] in order to be included in the
Company's proxy statement and form of proxy relating to that
meeting.
OTHER MATTERS
The cost of soliciting proxies in connection with the Annual
Meeting will be borne by the Company. The Company will, if
requested, reimburse banks, brokerage houses and other
custodians, nominees and certain fiduciaries for their reasonable
expenses incurred in mailing proxy material to their principals.
Proxies may be solicited by directors, officers and employees of
the Company without special remuneration. The Company has
retained Corporate Investor Communications, Inc. to assist in the
distribution of proxies at an estimated cost of approximately
$4,300 (including expenses). In addition to the use of mails,
proxies may be solicited by personal interviews, telephone or
telegraph.
The persons designated to vote shares covered by management
proxies intend to exercise their judgment in voting such shares
on other matters that may properly come before the meeting.
Management knows of no matters which will be presented for action
at the meeting other than as referred to in this proxy statement.
By Order of the Board of
Directors
BYRON L. WADE
Secretary
April ____, 1994
Houston, Texas
1. ELECTION OF DIRECTORS (a) FOR nominee listed / / WITHHOLD AUTHORITY / / Ezra G. Levin (for term expiring in 1997)
to vote for nominee
2. Approval of the MAXXAM 1994 Omnibus 3. Approval of the MAXXAM 1994 Non-Employee 4. Approval of the MAXXAM 1994 Executive
Employee Incentive Plan. Director Plan. Bonus Plan.
FOR / / AGAINST / / ABSTAIN / / FOR / / AGAINST / / ABSTAIN / / FOR / / AGAINST / / ABSTAIN / /
5. In their discretion, the proxies are authorized to vote upon such other
matters as may properly come before the meeting or any adjournments
or postponements thereof, hereby revoking any proxy or proxies hereto-
fore given by the undersigned. FOR / / AGAINST / / ABSTAIN / /
Address Change
PROXY DEPARTMENT and/or Comments / /
New York, N.Y. 10203-0254
Please sign exactly as your name appears at left.
If stock is held in the name of more than one person, EACH person should
sign. When signing as attorney, executor, administrator, trustee or
guardian, please give full title as such. If a corporation, please sign
in full corporate name by President or other authorized officer. If a
partnership, please sign in partnership name by authorized person.
Signature
Signature if held jointly
Votes MUST be indicated
Please complete, sign and return the proxy card promptly, using the enclosed envelope. /x/ in Black or Blue ink. / /
PREFERRED STOCK
MAXXAM INC.
5847 SAN FELIPE, SUITE 2600
HOUSTON, TEXAS 77057
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Charles E. Hurwitz and Anthony R. Pierno as proxies (each with power to act alone
and with power of substitution) to vote as designated on the reverse side, all shares of Class A $.05 Non-Cumulative
Participating Convertible Preferred Stock the undersigned is entitled to vote at the Annual Meeting of Stockholders of
MAXXAM Inc. to be held on May 25, 1994, and at any and all adjournments or postponements thereof.
WHEN PROPERLY EXECUTED, THIS PROXY WILL BE VOTED AS DESIGNATED BY THE UNDERSIGNED. IF NO CHOICE IS SPECIFIED, THE PROXY
WILL BE VOTED "FOR" THE ELECTION OF THE NOMINEES TO THE BOARD OF DIRECTORS, "FOR" THE APPROVAL OF THE MAXXAM 1994 OMNIBUS
EMPLOYEE INCENTIVE PLAN, "FOR" THE APPROVAL OF THE MAXXAM 1994 NON-EMPLOYEE DIRECTOR PLAN AND "FOR" THE APPROVAL OF THE MAXXAM
1994 EXECUTIVE BONUS PLAN, AS SET FORTH IN THE PROXY STATEMENT.
(Continued and to be signed on the reverse side)
1. ELECTION OF DIRECTORS (a) FOR nominee listed / / WITHHOLD AUTHORITY / / (a) Stanley D. Rosenberg (for term expiring
to vote for nominee in 1995)
(b) FOR nominee listed / / WITHHOLD AUTHORITY / / (b) Ezra G. Levin (for term expiring in 1997)
to vote for nominee
2. Approval of the MAXXAM 1994 Omnibus 3. Approval of the MAXXAM 1994 Non-Employee 4. Approval of the MAXXAM 1994 Executive
Employee Incentive Plan. Director Plan. Bonus Plan.
FOR / / AGAINST / / ABSTAIN / / FOR / / AGAINST / / ABSTAIN / / FOR / / AGAINST / / ABSTAIN / /
5. In their discretion, the proxies are authorized to vote upon such other
matters as may properly come before the meeting or any adjournments
or postponements thereof, hereby revoking any proxy or proxies hereto-
fore given by the undersigned. FOR / / AGAINST / / ABSTAIN / /
Address Change
PROXY DEPARTMENT and/or Comments / /
New York, N.Y. 10203-0254
Please sign exactly as your name appears at left.
If stock is held in the name of more than one person, EACH person should
sign. When signing as attorney, executor, administrator, trustee or
guardian, please give full title as such. If a corporation, please sign
in full corporate name by President or other authorized officer. If a
partnership, please sign in partnership name by authorized person.
Dated: 1994
Signature
Signature if held jointly
Votes MUST be indicated
Please complete, sign and return the proxy card promptly, using the enclosed envelope. /x/ in Black or Blue ink. / /
COMMON STOCK
MAXXAM INC.
5847 SAN FELIPE, SUITE 2600
HOUSTON, TEXAS 77057
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Charles E. Hurwitz and Anthony R. Pierno as proxies (each with power to act alone and wi
power of substitution) to vote as designated on the reverse side, all shares of Common Stock the undersigned is entitled to vot
at the Annual Meeting of Stockholders of MAXXAM Inc. to be held on May 25, 1994, and at any and all adjournments or
postponements thereof.
WHEN PROPERLY EXECUTED, THIS PROXY WILL BE VOTED AS DESIGNATED BY THE UNDERSIGNED. IF NO CHOICE IS SPECIFIED, THE PROXY
WILL BE VOTED "FOR" THE ELECTION OF THE NOMINEES TO THE BOARD OF DIRECTORS, "FOR" THE APPROVAL OF THE MAXXAM 1994 OMNIBUS
EMPLOYEE INCENTIVE PLAN, "FOR" THE APPROVAL OF THE MAXXAM 1994 NON-EMPLOYEE DIRECTOR PLAN AND "FOR" THE APPROVAL OF THE MAXXAM
1994 EXECUTIVE BONUS PLAN, AS SET FORTH IN THE PROXY STATEMENT.
(Continued and to be signed on the reverse side)