1
EXHIBIT 10.18
ALUMAX INC.
- --------------------------------------------------------------------------------
Employment Agreement
for
Thomas G. Johnston
- --------------------------------------------------------------------------------
December 4, 1997
2
ALUMAX INC.
- --------------------------------------------------------------------------------
Employment Agreement
for
Thomas G. Johnston
- -------------------------------------------------------------------------------
Page
----
1. Employment.................................................. 1
2. Period of Employment........................................ 1
(a) Duration Under Normal Circumstances.................... 1
(b) Termination Events..................................... 1
3. Duties During the Period of Employment...................... 1
4. Location of Employment...................................... 2
5. Current Cash Compensation................................... 2
6. Performance Accelerated Restricted Stock.................... 2
7. Employee Benefits........................................... 2
(a) Vacation and Sick Leave................................ 2
(b) Regular Reimbursed Business Expenses................... 2
(c) Employee Benefit Plans or Arrangements................. 2
(d) Employer's Executive Compensation Plans................ 3
(e) Financial and Tax Advice............................... 3
8. Termination................................................. 3
(a) Death or Retirement.................................... 3
(b) Disability............................................. 4
(c) Voluntary Termination by Employee without Good Reason.. 5
(d) Voluntary Termination by Employee with Good Reason,
or by Employer without Cause........................... 5
(e) Termination in Connection with Change in Control....... 7
(f) Termination by Employer with Cause..................... 9
(g) Expiration of Period of Employment..................... 9
(h) Date of Payment........................................ 9
9. Definitions................................................. 9
10. Excise Tax Gross-up......................................... 13
11. Non-Competition and Non-Disclosure; Employee Cooperation.... 15
3
Page
----
12. Governing Law; Disputes; Arbitration........................ 16
13. Notices..................................................... 17
14. Withholding................................................. 17
15. Mitigation.................................................. 17
16. Successors; Binding Agreement............................... 17
17. Pension Credit and Additional Pension Credit................ 17
18. Miscellaneous............................................... 18
4
EMPLOYMENT AGREEMENT
AGREEMENT, effective as of December 1, 1997, by and between Alumax Inc.,
a Delaware corporation ("Employer"), and Thomas G. Johnston, an individual
("Employee").
WHEREAS, Employer and Employee wish to enter into an Employment Agreement
setting forth the terms and conditions of the Employee's employment by the
Employer; and
WHEREAS, such Employment Agreement was approved by the Human Resources and
Compensation Committee of the Board of Directors of Employer at a meeting held
on December 4, 1997.
IN CONSIDERATION OF the mutual covenants herein contained, and other good
and valuable consideration, the parties hereto agree as follows:
1. Employment. Employer hereby agrees to employ Employee, and Employee
agrees to serve, as President of Employer, during the Period of Employment as
defined in Section 2.
2. Period of Employment
(a) Duration Under Normal Circumstances. The "Period of Employment"
shall be the five-year period commencing December 4, 1997 (the
"Commencement Date"), and ending on December 31, 2002.
(b) Termination Events. Notwithstanding anything in this Section 2 to
the contrary, the Period of Employment shall terminate upon the earliest to
occur of the following:
(i) the retirement of Employee, with the consent of Employer,
prior to reaching age 65;
(ii) the Disability (as defined in Section 9) of Employee and
the expiration of the 30-day period referred to in the definition of
Disability without the actions referred to therein being taken by
Employee;
(iii) the death of Employee;
(iv) the 90th day after service of notice by Employee to
Employer, in accordance with the provisions of Section 13, that
Employee elects to terminate the Period of Employment (a "voluntary
termination by Employee"); and
(v) the 90th day after service of notice by Employer to
Employee, in accordance with the provisions of Section 13, that
Employer elects to terminate the Period of Employment (a "voluntary
termination by Employer"), other than a termination by Employer with
Cause (in which event the Period of Employment shall promptly
terminate upon service of such notice).
3. Duties During the Period of Employment. Employee shall devote his full
business time, attention and best efforts to the affairs of Employer and its
subsidiaries during the Period of Employment and shall have such duties,
responsibilities and authority as shall be assigned to him from time to time by
the Chief Executive Officer or the Board of Directors of Employer and as shall
be consistent with the position and title of President. Employee may engage in
other activities, such as activities involving charitable, educational,
religious and similar types of organizations (all of which are deemed to benefit
Employer),
5
speaking engagements, and similar type activities, and may serve on the board
of directors of other corporations approved by the Board of Directors of
Employer, in each case to the extent that such other activities do not
materially detract from or limit the performance of his duties under this
Agreement, or inhibit or conflict in any material way with the business of
Employer and its subsidiaries.
4. Location of Employment. During the Period of Employment, Employer may
only require Employee to be based in or within 45 miles of Atlanta, Georgia,
except that Employer may require Employee to be based more than 45 miles from
Atlanta, Georgia if the relocation is to a principal executive office of
Employer; provided, however, that the Employer shall pay to, or reimburse
Employee for, on an after-tax basis, all reasonable expenses of relocation
incurred and substantiated by Employee in connection with any such relocation
and indemnify Employee, on an after-tax basis, against any loss actually
realized on the sale of Employee's principal residence within twelve months of
such relocation if Employee has reasonably cooperated with Employer in
connection with such sale.
5. Current Cash Compensation. Employer shall pay to Employee during the
Period of Employment a base annual salary of not less than $500,000 (or such
greater amount as may have been approved by the Board of Directors or the
Committee in its sole discretion), payable in substantially equal monthly
installments during each calendar year, or portion thereof, of the Period of
Employment; provided, however, that Employer agrees to review such base annual
salary annually and in light of such review may, in the sole discretion of the
Board of Directors of Employer or the Committee, increase such salary, taking
into account such factors as it deems pertinent.
6. Performance Accelerated Restricted Stock. Immediately on the
Commencement Date, Employee shall be granted PARS or Performance Awards for the
three (3) year Performance Periods ending December 31, 1997 and December 31,
1998. Employee's PARS Awards, subject to achievement of Performance Objectives
for each Performance Period, shall be 7,400 shares of Stock for the Performance
Period ending December 31, 1997 and 6,500 shares of Stock for the Performance
Period ending December 31, 1998, which Awards shall be treated in all respects
as if they had been granted on March 3, 1995 and March 8, 1996, respectively.
Such PARS Awards shall be subject to all terms, conditions and provisions of the
Alumax Inc. 1993 Long Term Incentive Plan (as the same may be modified,
replaced, or added to by Employer from time to time).
7. Employee Benefits
(a) Vacation and Sick Leave. Employee shall be entitled to five weeks
paid annual vacation, all paid Employer holidays and reasonable sick leave.
(b) Regular Reimbursed Business Expenses. Employer shall reimburse
Employee for all expenses and disbursements reasonably incurred and
substantiated by Employee in the performance of his duties during the
Period of Employment.
(c) Employee Benefit Plans or Arrangements. In addition to the cash
compensation provided for in Section 5 hereof, Employee, subject to meeting
eligibility requirements and to the provisions of this Agreement, shall be
entitled to participate without discrimination or duplication in all
employee (including executive) benefit plans of Employer, as presently in
effect or as they may be modified or added to by Employer from time to
time, to the extent such plans are available to other similarly situated
executives or employees of Employer, including, without limitation, plans
providing retirement benefits, medical insurance, life insurance,
disability insurance, and accidental death or dismemberment insurance.
-2-
6
(d) Employer's Executive Compensation Plans. In addition to the cash
compensation provided for in Section 5 hereof and the employee benefits of
Employer provided for in paragraph (c) of this Section 7, Employee, subject to
meeting eligibility requirements and to the provisions of this Agreement, shall
be entitled to participate without discrimination or duplication in all
executive compensation plans of Employer, as presently in effect or as they may
be modified or added to by Employer from time to time, to the extent such
plans are available to similarly situated executives or employees of Employer,
including, without limitation, the Alumax Inc. Executive Separation Policy, the
Alumax Inc. 1993 Annual Incentive Plan and the Alumax Inc. 1993 Long Term
Incentive Plan (as the same may be modified, replaced, or added to by Employer
from time to time), and other stock option plans, performance share plans,
management incentive plans, deferred compensation plans, severance policies and
supplemental retirement plans; provided that such compensation plans and
programs, in the aggregate, shall provide Employee with benefits and
compensation and incentive reward opportunities substantially no less favorable
than those provided by Employer for Employee under such plans and programs as
in effect on the date of this Agreement. To the extent terms of any such
policies, plans or programs, in effect at the time of termination of Employee's
employment by Employer, provide for or would afford Employee greater or more
favorable benefits than those provided to Employee under the terms and
conditions of this Agreement, such more favorable terms, without duplication,
shall be applied.
(e) Financial and Tax Advice. During (i) the Period of Employment, (ii)
the 12-month period following the termination of the Period of Employment as a
result of death or Disability, and (iii) the eighteen (18) month period
following the voluntary termination by Employee with Good Reason (as defined in
Section 9) or the voluntary termination by Employer without Cause (as defined
in Section 9), and (iv) the thirty (30) month period following the voluntary
termination by Employee with Good Reason or the voluntary termination by
Employer without Cause in connection with a Change in Control (as defined in
Section 9), or such shorter period provided in Section 8, Employer shall
provide Employee (or, if Employee shall have died, his estate) at Employer's
expense, third-party professional financial and tax advisory services,
primarily oriented to planning in light of Employee's entitlement to
compensation and employee benefits and appropriate in light of the financial
circumstances of Employee (or his estate).
8. Termination
(a) Death or Retirement. If the Period of Employment terminates pursuant
to paragraph (b) of Section 2 as a result of (1) the death of Employee, or (2)
the retirement of Employee with the consent of Employer, prior to reaching age
65, Employee (or Employee's estate) will be entitled to receive only:
(i) the base salary otherwise payable under Section 5 through the end
of the month in which Employee's employment is terminated, together with
salary, compensation or benefits which have been earned or become payable
as of the date of termination but which have not yet been paid to Employee;
(ii) a prorated portion of the award to Employee for the year of
termination under the Alumax Inc. 1993 Annual Incentive Plan, as the same
may be modified, replaced or added to by Employer from time to time,
assuming all applicable targets for the year of termination had been met,
with such award prorated based on the number of days during the year of
Employee's termination which precede such termination;
-3-
7
(iii) the PARS or other Performance Awards to Employee for the
Performance Periods in progress as of the date of termination under the
Alumax Inc. 1993 Long Term Incentive Plan, as the same may be modified,
replaced or added to by Employer from time to time, assuming all applicable
Performance Objectives for such Performance Periods had been met, with such
PARS or other Performance Awards payable in shares of Stock or cash as
determined by the Committee administering such Plan in its discretion and
any unvested outstanding PARS not earned during completed Performance
Periods will be fully vested and payable in shares of Stock or cash as
determined by the Committee administering such Plan in its discretion;
(iv) such other awards or bonuses as the Board of Directors may in
its sole discretion determine;
(v) during the 12-month period following the termination of
Employee's employment as a result of the death or retirement of Employee,
maintenance in effect for the continued benefit of Employee's dependents of
all insured and self-insured employee medical and dental benefit plans in
which Employee was participating immediately prior to termination provided
that such continued participation is possible under the general terms and
conditions of such plans (and any applicable funding media) and Employee's
dependents continue to pay an amount equal to the Employee's regular
contribution for such participation;
(vi) during the 12-month period following the termination of
Employee's employment as a result of the death or retirement of Employee,
the financial and tax advice set forth in paragraph (e) of Section 7; and
(vii) such other compensation and benefits, if any, as shall be
determined to be applicable in accordance with Employer's plans and
practices as in effect on the date of termination.
(b) Disability. If the Period of Employment terminates pursuant to
paragraph (b) of Section 2 as a result of Disability, Employee will be entitled
to receive only:
(i) the base salary otherwise payable under Section 5 through the end
of the month in which Employee's employment is terminated, together with
salary, compensation or benefits which have been earned or become payable
as of the date of termination but which have not yet been paid to Employee;
(ii) each month during the 12-month period following the month in
which Employee's employment is terminated, the excess of (1) base annual
salary at the rate in effect under Section 5 on the date of termination,
over (2) the amount, if any, payable to Employee under Employer's
disability plan(s) or other arrangements for disability compensation;
(iii) a prorated portion of the award to Employee for the year of
termination under the Alumax Inc. 1993 Annual Incentive Plan, as the same
may be modified, replaced or added to by Employer from time to time,
assuming all applicable targets for the year of termination had been met,
with such award prorated based on the number of days during the year of
Employee's termination which precede such termination;
-4-
8
(iv) the PARS or other Performance Awards to Employee for the
Performance Periods in progress as of the date of termination under the
Alumax Inc. 1993 Long Term Incentive Plan, as the same may be modified,
replaced or added to by Employer from time to time, assuming all applicable
Performance Objectives for such Performance Periods had been met, with such
PARS or other Performance Awards payable in shares of Stock or cash as
determined by the Committee administering such Plan in its discretion, and
any unvested outstanding PARS not earned during completed Performance
Periods will be fully vested and payable in shares of Stock or cash as
determined by the Committee administering such Plan in its discretion;
(v) term life insurance coverage at the expense of Employer for the
period from the date of termination of Employee's employment to the
expiration of the Period of Employment, including any extensions thereof in
a face amount equal to the coverage maintained for Employee under
then-existing Employer benefit plans for which Employee shall have the
right to designate the beneficiaries, such coverage to be maintained in the
face amount which would from time to time be applicable under such plans,
provided such coverage may be discontinued if at any time Employee accepts
full time employment with another employer;
(vi) during the 12-month period following the termination of
Employee's employment (or, if shorter, during the period until the
commencement of equivalent benefits from a new employer), the financial and
tax advice set forth in paragraph (3) of Section 7; and
(vii) such other compensation and benefits, if any, as shall be
determined to be applicable in accordance with Employer's plans and
practices as in effect on the date of termination.
(c) Voluntary Termination by Employee without Good Reason. If the Period of
Employment terminates pursuant to paragraph (b) of Section 2 as a result of a
voluntary termination by Employee without Good Reason, Employee will be entitled
to receive only:
(i) the base salary otherwise payable under Section 5 through the end
of the day on which Employee's employment is terminated, together with
salary, compensation or benefits which have been earned or become payable
as of the date of termination but which have not yet been paid to Employee;
(ii) to the extent possible, the opportunity to convert group and
individual life insurance and disability insurance policies of Employer
then in effect for Employee to individual policies of Employee upon the
same terms as similarly situated employees of Employer may apply for such
conversions; and
(iii) such other compensation and benefits, if any, as shall be
determined to be applicable in accordance with Employer's plans and
practices in effect on the date of termination.
(d) Voluntary Termination by Employee with Good Reason or by Employer
without Cause. If the Period of Employment terminates pursuant to paragraph (b)
of Section 2 as a result of a voluntary termination by Employee with Good
Reason, or a voluntary termination by Employer without Cause, then Employee will
be entitled to receive only:
-5-
9
(i) the base salary otherwise payable under Section 5 through the end
of the month in which Employee's employment is terminated, together with
salary, compensation or benefits which have been earned or become payable
as of the date of termination but which have not yet been paid to the
Employee;
(ii) a prorated portion of the award to Employee for the year of
termination under the Alumax Inc. 1993 Annual Incentive Plan, as the same
may be modified, replaced or added to by Employer from time to time,
assuming all applicable targets for the year of termination had been met,
with such award prorated based on the number of days during the year of
Employee's termination which precede such termination;
(iii) the PARS or other Performance Awards to Employee for the
Performance Periods in progress as of the date of termination under the
Alumax Inc. 1993 Long Term Incentive Plan, as the same may be modified,
replaced or added to by Employer from time to time, assuming all applicable
Performance Objectives for such Performance Periods had been met, with such
PARS or other Performance Awards payable in shares of Stock or cash as
determined by the Committee administering such Plan in its discretion, and
any unvested outstanding PARS not earned during completed Performance
Periods will be fully vested and payable in shares of Stock or cash as
determined by the Committee administering such Plan in its discretion;
(iv) a lump-sum severance payment in an amount equal to the product
of (A) the base annual salary at the rate in effect under Section 5 on the
date of termination plus the award to Employee for the year of termination
under the Alumax Inc. 1993 Annual Incentive Plan, as the same may be
modified, replaced or added to by Employer from time to time, assuming all
applicable targets for the year of termination had been met, multiplied by
(B) one and one-half (1.5), or severance under the Company's generally
applicable plans whichever is greater; provided that the payment made
pursuant to this paragraph (iv) shall be repaid by Employee in the event
Employee violates in any material respect the provisions of Section 7
hereof;
(v) maintenance in effect for the continued benefit of Employee and
his dependents for a period terminating on the earlier of (A) eighteen (18)
months after the date of termination of employment or such longer period
under applicable plans, including severance plans, or (B) the commencement
of equivalent benefits from a new employer of:
(A) all insured and self-insured medical and dental benefit
plans in which Employee was participating immediately prior to
termination, provided that Employee's continued participation is
possible under the general terms and conditions of such plans (and any
applicable funding media) and Employee continues to pay an amount
equal to Employee's regular contribution for such participation; and
(B) the group and individual life insurance and disability
insurance policies of Employer then in effect for Employee; provided,
however, that if Employer so elects, or if such continued
participation is not possible under the general terms and conditions
of such plans or under such policies, Employer shall, in lieu of the
foregoing, arrange to have issued for the benefit of Employee and
Employee's dependents individual policies of insurance providing
benefits substantially similar (on an after-tax basis) to those
described in this paragraph (v),
-6-
10
or, if such insurance is not available at a reasonable cost to
Employer, Employer shall otherwise provide Employee and Employee's
dependents equivalent benefits (on an after-tax basis); provided
further that, in no event shall Employee be required to pay any
premiums or other charges in an amount greater than that which
Employee would have paid in order to participate in Employer's plans
and policies;
(vi) for a period terminating on the earlier of (A) eighteen (18)
months after the date of termination of employment or (B) the commencement
of equivalent benefits from a new employer, the financial and tax advice
set forth in paragraph (e) of Section 7;
(vii) for a period terminating eighteen (18) months after the date of
termination of employment, the benefits equivalent on an after-tax basis to
the additional benefits Employee would have received under the employee
benefit and executive compensation plans, whether or not qualified for
federal income tax purposes (including, without limitation, all qualified
and non-qualified retirement plans, pension plans, profit sharing and other
defined contribution plans and excess benefit plans, but specifically
excluding incentive compensation, stock option and performance share plans)
in which Employee was participating immediately prior to termination, as if
Employee had received credit under such plans for service and age with
Employer during such period following Employee's termination, with such
benefits payable by Employee at the same times and in the same manner as
such benefits would have been received by Employee under such plans; and
(viii) such other compensation and benefits, if any, as shall be
determined to be applicable in accordance with Employer's plans and
practices in effect on the date of termination.
(e) Termination in Connection with Change in Control. If the Period of
Employment terminates pursuant to paragraph (b) of Section 2 as a result of a
voluntary termination by Employee with Good Reason, or a voluntary termination
by Employer without Cause in connection with a Change in Control (as defined in
Section 9), Employee will be entitled to receive only:
(i) the base salary otherwise payable under Section 5 through the end
of the month in which Employee's employment is terminated, together with
salary, compensation or benefits which have been earned or become payable
as of the date of termination but which have not yet been paid to Employee;
(ii) a prorated portion of the award to Employee for the year of
termination under the Alumax Inc. 1993 Annual Incentive Plan, as the same
may be modified, replaced or added to by Employer from time to time,
assuming all applicable targets for the year of termination had been met,
with such award prorated based on the number of days during the year of
Employee's termination which precede such termination;
(iii) the PARS or other Performance Awards to the Employee for the
Performance Periods in progress as of the date of termination under the
Alumax Inc. 1993 Long Term Incentive Plan, as the same may be modified,
replaced or added to by Employer from time to time, assuming all applicable
Performance Objectives for such Performance Periods had been met, with such
PARS or other Performance Awards payable in shares of Stock or cash as
determined by the Committee administering such Plan in its discretion and
any unvested outstanding PARS not earned during completed Performance
Periods will be
-7-
11
fully vested and payable in shares of Stock or cash as determined by the
Committee administering such Plan in its discretion;
(iv) a lump-sum severance payment in an amount equal to the product
of (a) the base annual salary at the rate in effect under Section 5 on
the date of termination plus the award to Employee for the year of
termination under the Alumax Inc. 1993 Annual Incentive Plan, as the same
may be modified, replaced or added to by Employer from time to time,
assuming all applicable targets for the year of termination had been met
multiplied by (b) two and one-half (2.5); provided that the payment made
pursuant to this paragraph (iv) shall be repaid by Employee in the event
Employee violates in any material respect the provisions of Section 11
hereof;
(v) maintenance in effect for the continued benefit of Employee
and his dependents for a period terminating on the earlier of (A) thirty
(30) months after date of termination of employment or (B) the
commencement of equivalent benefits from a new employer of:
(A) all insured and self insured medical and dental benefit plans in
which Employee was participating immediately prior to termination,
provided that Employee's continued participation is possible under
the general terms and conditions of such plans (and any applicable
funding media) and Employee continues to pay an amount equal to
Employee's regular contribution for such participation; and
(B) the group and individual life insurance and disability insurance
policies of Employer then in effect for Employee; provided, however,
that if Employer so elects, or if such continued participation is
not possible under the general terms and conditions of such plans or
under such policies, Employer shall, in lieu of the foregoing,
arrange to have issued for the benefit of Employee and Employee's
dependents individual policies of insurance providing benefits
substantially similar (on and after-tax basis) to those described in
this paragraph (v), or, if such insurance is not available at a
reasonable cost to Employer, Employer shall otherwise provide
Employee and Employee's dependents equivalent benefits (on an
after-tax basis); provided further that, in no event shall Employee
be required to pay any premiums or other charges in an amount
greater than that which Employee would have paid in order to
participate in Employer's plans and policies;
(vi) for a period terminating on the earlier of (A) thirty (30)
months after date of termination of employment or (B) the commencement of
equivalent benefits from a new employer, the financial and tax advice set
forth in paragraph (e) of Section 7.
(vii) for a period terminating thirty (30) months after the date of
termination of employment the benefits equivalent on an after-tax basis
to the additional benefits Employee would have received under the
employee benefit and executive compensation plans, whether or not
qualified for federal income tax purposes (including, without limitation,
all qualified and non-qualified retirement plans, pension plans,
profit-sharing and other defined contribution plans and excess benefit
plans, but specifically excluding incentive compensation, stock option
and performance share plans) in which Employee was participating
immediately prior to termination, as if Employee has received credit
under such plans for service and age with Employer during such period
following Employee's
-8-
12
termination, with such benefits payable by Employer at the same times
and in the same manner as such benefits would have been received by
Employee under such plans; and
(f) Termination by Employer with Cause. If the Period of Employment
terminates pursuant to paragraph (b) of Section 2 as a result of a
voluntary termination by Employer with Cause, Employee will be entitled to
receive only:
(i) the base salary otherwise payable under Section 5 through
the day on which Employee's employment is terminated, together with
salary, compensation or benefits which have been earned or become
payable as of the date of termination but which have not yet been paid
to Employee;
(ii) such other compensation and benefits, if any, as shall be
determined to be applicable under the circumstances in accordance with
Employer's plans and practices in effect on the date of termination.
(g) Expiration of Period of Employment. If the employment of Employee
by Employer terminates upon expiration of the Period of Employment (as
defined in Section 2(a) of this Agreement), Employee will be entitled to
receive, in addition to payments and benefits otherwise available in
connection with retirement of Employee, without discrimination or
duplication, only:
(i) all PARS and other Performance Awards to Employee for the
Performance Periods in progress as of the date of expiration under the
Alumax Inc. 1993 Long Term Incentive Plan, as the same may be
modified, replaced or added to by Employer from time to time, assuming
all applicable Performance Objectives for such Performance Periods had
been met, with such PARS or other Performance Awards payable in shares
of Stock or cash as determined by the Committee administering such
Plan in its discretion and any unvested outstanding PARS not earned
during completed Performance Periods will be fully vested and payable
in shares of Stock or cash as determined by the Committee
administering such Plan in its discretion;
(ii) all outstanding options to acquire Stock of Employer
previously granted to Employee under the Alumax Inc. 1993 Long Term
Incentive Plan, as the same may be modified, replaced or added to by
Employer from time to time, and any other stock option plans of
Employer, on a fully vested basis as if all conditions to vesting had
been satisfied.
(h) Date of Payment. Except as otherwise provided herein, all cash
payments and lump-sum awards required to be made pursuant to the provisions
of paragraphs (a) through (g) of this Section 8 shall be made no later than
the fifteenth day following the date of Employee's termination.
9. Definitions. For purposes of this Agreement, the following
capitalized terms shall have the meanings set forth below:
"Beneficial Owner," with respect to any securities, shall mean any
person who, directly or indirectly, has or shares the right to vote or
dispose of such securities or otherwise has "beneficial ownership" of such
securities (within the meaning of Rule 13d-3 and Rule 13d-5 (as such Rules
are in effect on the date of this Agreement) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), including pursuant to any
agreement, arrangement or understanding (whether or not in writing);
provided, however, that (i) a person shall not be deemed the Beneficial
Owner of any
-9-
13
security as a result of any agreement, arrangement or understanding to vote
such security (x) arising solely from a revocable proxy or consent
solicited pursuant to, and in accordance with, the applicable provisions of
the Exchange Act and the rules and regulations thereunder or (y) made in
connection with, or otherwise to participate in, a proxy or consent
solicitation made, or to be made, pursuant to, and in accordance with, the
applicable provisions of the Exchange Act and the rules and regulations
thereunder, in either case described in clause (x) or clause (y) above
whether or not such agreement, arrangement or understanding is also then
reportable by such person on Schedule 13D under the Exchange Act (or any
comparable or successor report), and (ii) a person engaged in business as
an underwriter of securities shall not be deemed to be the Beneficial Owner
of any securities acquired through such person's participation in good
faith in a firm commitment underwriting until the expiration of forty days
after the date of such acquisition.
"Cause" shall mean (i) the willful engaging by Employee in conduct
which is not authorized by the Board of Directors of Employer or within the
normal course of Employee's business decisions and is known by Employee to
be materially detrimental to the best interests of Employer or any of its
subsidiaries, (ii) the willful engaging by Employee in conduct which
Employee knows is, or has substantial reason to believe to be, illegal to
the extent of a felony violation, or the equivalent seriousness under laws
other than those of the United States, and which has effects on Employer or
Employee materially injurious to Employer, (iii) the engaging by Employee
in any willful and conscious act of serious dishonesty, in each case which
the Board of Directors of Employer reasonably determines affects adversely,
or could in the future affect adversely, the value, reliability or
performance of Employee to Employer in a material manner, (iv) the willful
and continued failure by Employee to perform substantially his duties to
Employer under this Agreement (including any sustained and unexcused
absence of Employee from the performance of his duties under this
Agreement, which absence has not been certified in writing as due to
physical or mental illness in accordance with the procedures set forth in
this Section 9 under "Disability"), after a written demand for substantial
performance has been delivered to Employee by the Board of Directors
specifically identifying the manner in which Employee has failed to
substantially perform his duties, or (v) the sustained and unexcused
absence of Employee from the performance of his duties under this Agreement
for a period of 180 days or more within a period of 365 consecutive days,
regardless of the reason for such absence, unless Employee demonstrates
that such absence is due to Disability. Any act, or failure to act, based
upon authority given pursuant to a resolution duly adopted by the Board of
Directors of Employer or based upon the advice of counsel for Employer
shall be conclusively presumed to be done, or omitted to be done, in good
faith and in the best interests of Employer, and shall not be deemed to
constitute Cause under subdivisions (ii) or (iii) of this definition.
Notwithstanding the foregoing, there shall not be deemed to be a voluntary
termination by Employer with Cause unless and until there shall have been
delivered to Employee a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership
of the Board of Directors of Employer at a meeting of such Board held after
reasonable notice to Employee and at which Employee has an opportunity,
together with his counsel, to be heard before such Board, finding that, in
the good faith opinion of such Board, Employee was guilty of the conduct
set forth above and specifying the particulars thereof in detail.
"Change in Control" shall mean the satisfaction of one or more of the
following conditions:
(i) any person is or becomes the Beneficial Owner, directly or
indirectly, of securities of Employer representing 20 percent or more
of the combined voting power of Employer's then-outstanding securities
(a "20% Beneficial Owner"); provided, however, that (a) the term "20%
Beneficial Owner" shall not include any Beneficial Owner who has
-10-
14
crossed such 20 percent threshold solely as a result of an acquisition of
securities directly from Employer, or solely as a result of an acquisition
by Employer of Employer securities, until such time thereafter as such
person acquires additional voting securities other than directly from
Employer and, after giving effect to such acquisition, such person would
constitute a 20% Beneficial Owner; and (b) with respect to any person
eligible to file a Schedule 13G pursuant to Rule 13d-1(b)(1) under the
Exchange Act with respect to Employer securities (an "Institutional
Investor"), there shall be excluded from the number of securities deemed to
be beneficially owned by such person a number of securities representing
not more than 10 percent of the combined voting power of Employer's
then-outstanding securities;
(ii) during any period of two consecutive years beginning after the
commencement of the Period of Employment, individuals who at the beginning
of such period constitute the Board of Directors of Employer together with
those individuals who first become Directors during such period (other than
by reason of an agreement with Employer in settlement of a proxy contest
for the election of directors) and whose election or nomination for
election to the Board was approved by a vote of at least two-thirds (2/3)
of the Directors then still in office who either were Directors at the
beginning of the period or whose election or nomination for election was
previously so approved (the "Continuing Directors"), cease for any reason
to constitute a majority of the Board of Directors of Employer;
(iii) the stockholders of Employer approve a merger, consolidation,
recapitalization or reorganization of Employer, or a reverse stock split of
any class of voting securities of Employer, or the consummation of any such
transaction if stockholder approval is not obtained, other than any such
transaction which would result in at least 75% of the total voting power
represented by the voting securities of Employer or the surviving entity
outstanding immediately after such transaction being beneficially owned by
persons who together owned at least 75% of the combined voting power of the
voting securities of Employer outstanding immediately prior to such
transaction, with the relative voting power of each such continuing holder
compared to the voting power of each other continuing holder not
substantially altered as a result of the transaction; provided that, for
purposes of this paragraph (iii), such continuity of ownership (and
preservation of relative voting power) shall be deemed to be satisfied if
the failure to meet such 75% threshold (or to preserve such relative voting
power) is due solely to the acquisition of voting securities by an employee
benefit plan of Employer or such surviving entity or of any subsidiary of
Employer or such surviving entity;
(iv) the stockholders of Employer approve a plan of complete
liquidation or dissolution of Employer or an agreement for the sale or
disposition of all or substantially all the assets of Employer; or
(v) any other event which the Board of Directors of Employer (not
taking into account any vote of Employee) determines shall constitute a
Change in Control for purposes of this Agreement; provided, however, that a
Change in Control shall not be deemed to have occurred if any of the
following conditions (each, an "exception") is satisfied:
(1) Unless a majority of the Continuing Directors of Employer
(not taking into account any vote of Employee) determines that for
purposes of any or all of the provisions of this Agreement the
exception set forth in this paragraph
-11-
15
(1) shall not apply, none of the foregoing conditions would
have been satisfied but for one or more of the following persons
acquiring or otherwise becoming the Beneficial Owner of
securities of Employer: (A) any person who has entered into a
binding agreement with Employer, which agreement has been
approved by two-thirds (2/3) of the Continuing Directors,
limiting the acquisition of additional voting securities by such
person, the solicitation of proxies by such person or proposals
by such person concerning a business combination with Employer (a
"Standstill Agreement"); (B) any employee benefit plan, or
trustee or other fiduciary thereof, maintained by Employer or any
subsidiary of Employer; (C) any subsidiary of Employer; or (D)
Employer.
(2) Unless a majority of the Continuing Directors of
Employer (not taking into account any vote of Employee)
determines that for purposes of any or all of the provisions of
this Agreement the exception set forth in this paragraph (2)
shall not apply, none of the foregoing conditions would have
been satisfied but for the acquisition by Employer of another
entity (whether by merger or consolidation, the acquisition of
stock or assets, or otherwise) in exchange, in whole or in part,
for securities of Employer, provided that, immediately following
such acquisition, the Continuing Directors constitute a majority
of the Board of Directors of Employer, or a majority of the
board of directors of any other surviving entity, and, in either
case, no agreement, arrangement or understanding exists at that
time which would cause such Continuing Directors to cease
thereafter to constitute a majority of the Board of Directors or
of such other board of directors.
(3) Unless a majority of the Continuing Directors of
Employer (not taking into account any vote of Employee)
determines that for purposes of any or all of the provisions of
this Agreement the exception set forth in this paragraph (3)
shall not apply, none of the foregoing conditions would have
been satisfied but for Employee, or a person in which Employee
has a one-half of one percent (0.5%) or greater equity interest,
either singly or acting in concert with one or more other
persons, becoming a 20% Beneficial Owner.
(4) Employee determines that, for purposes of any or all
of the provisions of this Agreement, none of the foregoing
conditions shall be deemed to have been satisfied.
(5) A majority of the Continuing Directors (not taking
into account any vote of Employee) determines that a Change of
Control shall not be deemed to have occurred.
"Committee" shall mean the Human Resources and Compensation Committee of
the Employer's Board of Directors.
"Disability" shall mean the absence of Employee from his duties with
Employer on a full-time basis for one hundred eighty (180) days within any
period of three hundred and sixty-five (365) consecutive days as a result of
Employee's incapacity due to physical or mental illness as certified in writing
by a physician selected by Employee and reasonably acceptable to Employer (it
being understood that such physician shall be deemed to be reasonably
acceptable to Employer if, within a period of fifteen (15) days after Employee
notifies Employer of the name of such physician, Employer does not object to
the use of such physician), unless within thirty (30) days after written notice
to Employee by Employer, in accordance with the
-12-
16
provisions of Section 16, that Employee's employment is being terminated by
reason of such absence, Employee shall have returned to the full performance of
Employee's duties and shall have presented to Employer a written certificate of
Employee's good health prepared by a physician selected by Employee and
reasonably acceptable to Employer.
"PARS" shall mean Performance Accelerated Restricted Stock Units awarded to
participants pursuant to the Alumax Inc. 1993 Long Term Incentive Plan, as the
same may be modified, replaced or added to by Employee from time to time.
"Stock" shall mean Employer's Common Stock, $.01 par value, and such
securities as may be substituted (or resubstituted) for Stock.
Voluntary termination by Employee with "Good Reason" shall mean a voluntary
termination by Employee resulting from the Employer (i) reducing Employee's base
annual salary as in effect immediately prior to such reduction or reducing in a
material respect Employee's opportunity to earn incentive compensation as
provided in Section 7(d) of this Agreement, (ii) assigning Employee duties or
responsibilities which are materially inconsistent with such position, (iii)
removing Employee from or failing to reappoint or reelect Employee to such
position, except in connection with a termination as a result of death,
Disability, voluntary termination by Employee, retirement by Employee,
termination with Cause or expiration of the Period of Employment specified in
Section 2(a) of this Agreement or (iv) otherwise materially breaching its
obligations under this Agreement, in each case after notice in writing from
Employee to Employer and a period of 30 days after such notice during which
Employer fails to correct such conduct.
10. Excise Tax Gross-up. In the event that Employee becomes entitled to
one or more payments (with a "payment" including, without limitation, the
vesting of an option or other non-cash benefit or property, whether pursuant to
the terms of this Agreement or any other plan, arrangement or agreement with
Employer or any affiliated company) (the "Total Payments"), which are or become
subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended (the "Code"), (or any similar tax that may hereafter be imposed) (the
"Excise Tax"), Employer shall pay to Employee at the time specified below an
additional amount (the "Gross-up Payment") (which shall include, without
limitation, reimbursement for any penalties and interest that may accrue in
respect of such Excise Tax) such that the net amount retained by Employee, after
reduction for any Excise Tax (including any penalties or interest thereon) on
the Total Payments and any federal, state and local income or employment tax and
Excise Tax on the Gross-up Payment provided for by this Section 13, but before
reduction for any federal, state or local income or employment tax on the Total
Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount
equal to the product of any deductions disallowed for federal, state or local
income tax purposes because of the inclusion of the Gross-up Payment in
Employee's adjusted gross income multiplied by the highest applicable marginal
rate of federal, state or local income taxation, respectively, for the calendar
year in which the Gross-up Payment is to be made.
For purposes of determining whether any of the Total Payments will be
subject to the Excise Tax and the amount of such Excise Tax,
(i) the Total Payments shall be treated as "parachute payments"
within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code
shall be treated as subject to the Excise Tax, unless, and except to the
extent that, in the written opinion of independent compensation consultants
or auditors of nationally recognized standing selected by Employer and
reasonably acceptable to Employee ("Independent Auditors"), the Total
Payments (in whole or in part) do not constitute parachute payments, or
such excess parachute payments (in whole or in part) represent reasonable
-13-
17
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the base amount within the meaning of
Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax,
(ii) the amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A) the total
amount of the Total Payments or (B) the amount of excess parachute payments
within the meaning of Section 280G(b)(1) of the Code (after applying clause
(i) above), and
(iii) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by Employer's Independent Auditors appointed
pursuant to clause (i) above in accordance with the principles of Sections
280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-up Payment, Employee
shall be deemed (A) to pay federal income taxes at the highest marginal rate of
federal income taxation for the calendar year in which the Gross-up Payment is
to be made; (B) to pay any applicable state and local income taxes at the
highest marginal rate of taxation for the calendar year in which the Gross-up
Payment is to be made, net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local taxes if paid in
such year (determined without regard to limitations on deductions based upon the
amount of Employee's adjusted gross income); and (C) to have otherwise allowable
deductions for federal, state and local income tax purposes at least equal to
those disallowed because of the inclusion of the Gross-up Payment in Employee's
adjusted gross income. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
the Gross-up Payment is made, Employee shall repay to Employer at the time that
the amount of such reduction in Excise Tax is finally determined (but, if
previously paid to the taxing authorities, not prior to the time the amount of
such reduction is refunded to Employee or otherwise realized as a benefit by
Employee) the portion of the Gross-up Payment that would not have been paid if
such Excise Tax had been applied in initially calculating the Gross-up Payment,
plus interest on the amount of such repayment at the rate provided in Section
1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder at the time the Gross-up Payment
is made (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-up Payment), Employer shall make
an additional Gross-up Payment in respect of such excess (plus any interest and
penalties payable with respect to such excess) at the time that the amount of
such excess is finally determined.
The Gross-up Payment provided for above shall be paid on the thirtieth day
(or such earlier date as the Excise Tax becomes due and payable to the taxing
authorities) after it has been determined that the Total Payments (or any
portion thereof) are subject to the Excise Tax; provided, however, that if the
amount of such Gross-up Payment or portion thereof cannot be finally determined
on or before such day, Employer shall pay to Employee on such day an estimate,
as determined by Employer's Independent Auditors appointed pursuant to clause
(i) above, of the minimum amount of such payments and shall pay the remainder of
such payments (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code), as soon as the amount thereof can be determined. In
the event that the amount of the estimated payments exceeds the amount
subsequently determined to have been due, such excess shall constitute a loan by
Employer to Employee, payable on the fifth day after demand by Employer
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code). If more than one Gross-up Payment is made, the amount of each Gross-up
Payment shall be computed so as not to duplicate any prior Gross-up Payment.
Employer shall have the right to control all proceedings with the Internal
Revenue Service that may arise in connection with the determination and
assessment of any Excise Tax and, at its sole option, Employer may pursue or
forego any and all administrative appeals, proceedings, hearings and conferences
with any taxing authority in respect of such Excise Tax (including any interest
or penalties thereon); provided, however, that Employer's control
-14-
18
over any such proceedings shall be limited to issues with respect to which a
Gross-up Payment would be payable hereunder and Employee shall be entitled to
settle or contest any other issue raised by the Internal Revenue Service or any
other taxing authority. Employee shall cooperate with Employer in any
proceedings relating to the determination and assessment of any Excise Tax and
shall not take any position or action that would materially increase the amount
of any Gross-up Payment hereunder.
11. Non-Competition, Non-Disparagement and Non-Disclosure; Employee
Cooperation
(a) Without the consent in writing of the Board of Directors of
Employer, upon termination of Employee's employment for any reason,
Employee will not for a period of three years thereafter, acting alone or
in conjunction with others, directly or indirectly (i) engage (either as
owner, partner, stockholder, employer or employee) in any business in which
he has been directly engaged, or has supervised as an executive, during the
last two years prior to such termination and which is directly in
competition with a business conducted by Employer or any of its
subsidiaries; (ii) induce any customers of Employer or any of its
subsidiaries with whom Employee has had contacts or relationships, directly
or indirectly, during and within the scope of his employment with Employer
or any of its subsidiaries, to curtail or cancel their business with such
companies or any of them; (iii) solicit or canvass business from any person
who was a customer of Employer or any of its subsidiaries at or during the
two-year period immediately preceding termination of Employee's employment;
or (iv) induce, or attempt to influence, any employee of Employer or any of
its subsidiaries to terminate his employment; provided, however, that the
limitation contained in clause (i) above shall not apply if Employee's
employment is terminated as a result of a voluntary termination by Employee
with Good Reason, a voluntary termination by Employer without Cause or
retirement upon reaching age 65 or thereafter; and provided further, that
the limitation contained in clause (i) above shall not prohibit Employee
from engaging in any business directly competitive with Employer or any of
its subsidiaries as a director, consultant or private investor upon
retirement upon reaching age 62 or thereafter with the consent of a
majority of the Board of Directors of Employer, which consent shall not be
unreasonably withheld. The provisions of subparagraphs (i), (ii), (iii) and
(iv) above are separate and distinct commitments independent of each of the
other subparagraphs. It is agreed that the ownership of not more than 1/2
of 1% of the equity securities of any company having securities listed on
an exchange or regularly traded in the over-the-counter market shall not,
of itself, be deemed inconsistent with clause (i) of this paragraph (a).
(b) Employee shall not, at any time during the Period of Employment
or following Employee's termination of employment for any reason
whatsoever, make any statement which might be reasonably regarded as
disparaging to the Employer, its Board of Directors, Directors, officers,
employees, operations, businesses, business practices, strategic and
business plans or which may be reasonably expected to reflect unfavorably
on the Employer, except as may be required by law.
(c) Employee shall not, at any time during the Period of Employment or
following Employee's termination of employment for any reason whatsoever,
disclose, use, transfer or sell, except in the course of employment with
Employer, any confidential or proprietary information of Employer and its
subsidiaries so long as such information has not otherwise been disclosed
or is not otherwise in the public domain, except as required by law or
pursuant to legal process.
(d) Employee agrees to cooperate with Employer, by making himself
available to testify on behalf of Employer or any subsidiary or affiliate
of Employer, in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, and to assist Employer, or any subsidiary
or affiliate of Employer in any such action, suit or proceeding, by
providing information and meeting and consulting with the Board of
Directors of Employer or its representatives or counsel, or
-15-
19
representatives or counsel of Employer, or any subsidiary or affiliate of
Employer, as requested by such Board of Directors, representatives or
counsel. Employer agrees to reimburse the Employee, on an after-tax basis,
for all expenses actually incurred in connection with his provision of
testimony or assistance.
12. Governing Law; Disputes; Arbitration
(a) This Agreement is governed by and is to be construed, administered
and enforced in accordance with the laws of the State of Delaware, without
regard to the conflict of laws principles thereof. If under such law, any
portion of this Agreement is at any time deemed to be in conflict with any
applicable statute, rule, regulation, ordinance or principle of law, such
portion shall be deemed to be modified or altered to the extent necessary
to conform thereto or, if that is not possible, to be omitted from this
Agreement; and the invalidity of any such portion shall not affect the
force, effect and validity of the remaining portion hereof.
(b) All reasonable costs and expenses (including fees and
disbursements of counsel) incurred by Employee in seeking to enforce rights
pursuant to this Agreement shall be paid or reimbursed to Employee
promptly by Employer, whether or not Employee is successful in asserting
such rights, except that Employee shall repay to Employer any such amounts
to the extent that an arbitrator or court issues a final, unappealable
order setting forth a determination that Employee's claim was frivolous
or advanced by Employee in bad faith; provided, however, that with respect
to any Change in Control, the Board of Directors of Employer may determine
that the repayment by Employee contemplated by the immediately preceding
clause of this paragraph shall not apply to any claims arising out of such
Change in Control, which determination shall thereafter be irrevocable with
respect to such claims.
(c) Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in Atlanta,
Georgia by three arbitrators in accordance with the Commercial Arbitration
Rules of the American Arbitration Association in effect at the time of
submission to arbitration. Judgment may be entered on the arbitrators'
award in any court having jurisdiction. For purposes of settling any
dispute or controversy arising hereunder or for the purpose of entering any
judgment upon an award rendered by the arbitrators, Employer and Employee
hereby consent to the jurisdiction of any or all of the following courts:
(i) the United States District Court for the Northern District of Georgia,
(ii) any of the courts of the State of Georgia, or (iii) any other court
having jurisdiction. Employer and Employee further agree that any service
of process or notice requirements in any such proceeding shall be satisfied
if the rules of such court relating thereto have been substantially
satisfied. Employer and Employee hereby waive, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter
have to such jurisdiction and any defense of inconvenient forum. Employer
and Employee hereby agree that a judgment upon an award rendered by the
arbitrators may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Subject to Section 12(b), Employer
shall bear all costs and expenses arising in connection with any
arbitration proceeding pursuant to this Section 12. Notwithstanding any
provision in this Section 12, Employee shall be entitled to seek specific
performance of Employee's right to be paid during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
Initials Employer:_____________ Employee:_____________
(d) Any amounts that have become payable pursuant to the terms of this
Agreement or any judgment by a court of law or a decision by arbitrators
pursuant to this Section 12 but which are
-16-
20
not timely paid shall bear interest at the prime rate in effect at the
time such payment first becomes payable, as quoted by The Chase Manhattan
Bank, New York, New York.
13. Notices. All notices under this Agreement shall be in writing and
shall be deemed effective when received (in Employer's case, by its Secretary)
or seventy-two (72) hours after deposit thereof in the U.S. mails, postage
prepaid, for delivery as registered or certified mail, addressed, in the case
of Employee, to him at his address specified below, and in the case of
Employer, to its principal United States corporate headquarters, attention of
the Secretary, or to such other address as Employee or Employer may by notice
designate in writing at any time or from time to time to the other party. In
lieu of notice by deposit in the U.S. mail, a party may give notice by personal
delivery, prepaid cable, telegram, telex or telecopy and such notice shall be
effective twenty-four (24) hours after it has been properly sent.
14. Withholding. All payments to be made to Employee under this
Agreement will be subject to required withholding taxes and other deductions.
15. Mitigation. Employee shall not be required to mitigate the amount of
any payment Employer becomes obligated to make to Employee in connection with
this Agreement, by seeking other employment or otherwise, and except as
expressly provided in this Agreement, amounts or other benefits to be paid or
provided to Employee pursuant to this Agreement shall not be reduced by reason
of Employee obtaining other employment or receiving similar payments or benefits
from another employer.
16. Successors; Binding Agreement
(a) Any Successor (as hereinafter defined) to Employer shall be bound
by this Agreement. Employer will seek to have any Successor assent to the
fulfillment by Employer of its obligations under this Agreement at
Employee's request. Failure of Employer to obtain such assent within thirty
(30) days after such request shall constitute Good Reason for termination
by Employee of Employee's employment and, upon a voluntary termination by
Employee pursuant to Section 2, shall entitle Employee to the benefits
provided in Section 8(e). For purposes of this Agreement, "Successor" shall
mean any person that succeeds to, or has the practical ability to control
(either immediately or with the passage of time), Employer's business
directly, by merger or consolidation, or indirectly, by purchase of the
Employer's voting securities, all or substantially all of its assets or
otherwise.
(b) For purposes of this Agreement, "Employer" shall include any
corporation or other entity which is the surviving or continuing entity in
respect of any amalgamation, merger, consolidation, dissolution, asset
acquisition or other form of business combination.
17. Pension Credit
(a) The Employee shall be entitled to a supplemental pension benefit
equal to the excess, if any, of (x) over (y) where (x) and (y) are as
defined below:
(x) the pension benefit that would have been payable to the
Employee under the Alumax Retirement Plan for Salaried Employees, as
it may from time to time be amended (or any successor plan which is a
defined benefit plan) (the "Plan"), if the periods of employment with
AMAX Inc. or Aztec Mining Company Limited and the period April 1, 1994
through October 31, 1996 were included in Employee's Benefit Service
(as defined in the Plan). The pension benefit determined under this
clause (x) shall be determined
-17-
21
without regard to any limits imposed by the Internal Revenue Code
(currently Sections 401(a)(17) and 415).
(y) the pension benefit paid or payable under any defined
benefit plan (whether or not qualified under the Internal Revenue
Code) sponsored by AMAX Inc. or Alumax Inc. for which any of the
periods of service are included in the calculation of the pension
benefit calculated under clause (x) above.
The supplemental pension benefit shall commence as of the same date
and shall be paid in the same form as Employee's benefit under the Plan.
(b) The benefit entitlements of Employee provided in this Section 16
shall survive any termination of the Period of Employment pursuant to Section 2.
18. Miscellaneous.
(a) Except to the extent that the terms of this Agreement confer
benefits that are more favorable to Employee than are available under any
other employee benefit or executive compensation plan of Employer in which
Employee is a participant, Employee's rights under any such employee (including
executive) benefit plan or executive compensation or severance plan shall be
determined in accordance with the terms of such plan (as it may be modified or
added to by Employer from time to time).
(b) This Agreement constitutes the entire understanding between Employer
and Employee relating to employment of Employee by Employer and its
subsidiaries and supersedes and cancels all prior agreements and understandings
with respect to the subject matter of this Agreement and such other written
agreements, including the Executive Separation Policy of the Employer.
Employee shall not be entitled to any payment or benefit under this Agreement
which duplicates a payment or benefit received or receivable by Employee under
such prior agreements and understandings or under any employee (including
executive) benefit plan or executive compensation plan of the Employer.
(c) This Agreement may be amended but only by a subsequent written
agreement of the parties.
(d) This Agreement shall be binding upon and shall inure to the benefit
of Employee, his heirs, executors, administrators and beneficiaries, and shall
be binding upon and inure to the benefit of Employer and its successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the year and day first above written.
ALUMAX INC.
By /s/ HELEN M. FEENEY
--------------------
Vice President
/s/ THOMAS G. JOHNSTON
-----------------------
Thomas G. Johnston
-18-
22
Address of Employee for Purposes of Notices:
-------------------------------------------
-------------------------------------------
-19-