Exhibit 10(gg)(4)
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Alcoa
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390
Park Avenue
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New
York, New York 10022 USA
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Klaus
Kleinfeld
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President
and Chief Executive Officer
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October 30, 2008
J. Michael Schell
Alcoa Inc.
390 Park Avenue
New York, New York 10022
Dear Mike:
As Executive Vice
President—Business Development and Law/Chief Compliance
Officer, you are a key part of the senior executive management team
of Alcoa Inc. (the “Company”). The business
relationships you have developed both inside and outside of the
Company, your knowledge of the Company’s business affairs and
your management experience are all of great importance to the
Company, and I value your continuing contributions. As I am sure
you can also appreciate, it is important to the Company’s
future success that you, me and the other members of the senior
executive leadership team are able to enhance our ability to
increase shareholder value, and if necessary, to ease transitions
when it is in the best interest of the Company to do so.
Accordingly, it is my pleasure to be able to provide you with this
letter agreement (the “Agreement”) which sets forth the
terms of an arrangement between you and the Company concerning your
continuing and post-employment obligations. This letter agreement
supersedes and replaces in its entirety the letter agreement dated
March 19, 2008, between you and the Company of the same
subject matter. For the avoidance of doubt, it does not supersede
your offer letter with the Company dated March 19,
2008.
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I.
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You
voluntarily resign or retire .
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You may terminate your employment
with the Company by voluntarily resigning or by retiring. If you
wish to resign or retire, you will provide the Company with at
least three months’ advance written notice (the
“Notice,” which shall contain your selected date of
termination, which must be at least three months after the date the
Notice is received by the Company (such date of receipt, the
“Notice Date”)), after which the following conditions
shall apply:
Your active service with the Company
will be terminated on the date specified in the Notice (or such
later date as you and the Company mutually agree), or such earlier
date as the Company may determine in its sole discretion (the
“Voluntary Termination Date”). During the period from
the Notice Date through the Voluntary Termination Date,
(i) the Company may, in its sole discretion, assign you such
duties as it sees fit (but commensurate with your position) and
(ii) you agree to continue to provide at least 20% of the
average level of services you provided to the Company during the
preceding 36-month period, such that your “separation from
service” for purposes of Section 409A of the Internal
Revenue Code of 1986, as amended (“409A”), occurs on
the Voluntary Termination Date.
If your employment with the Company
terminates pursuant to this Section I, you will be paid the
following amounts (which you acknowledge would not be due you in
the absence of this Agreement) on the first business day which is
at least six months after the Voluntary Termination Date, provided
that on or after the Voluntary Termination Date and at least 10
days prior to the payment date, you execute and return to the
Company the release agreement attached as Exhibit A (the
“Release Agreement”) and (ii) any period within
which you may revoke the Release Agreement pursuant to the terms
thereof has expired without you having revoked the Release
Agreement:
(i) $50,000 in consideration of
execution and delivery of the Release Agreement as provided above;
and
(ii) If the Voluntary Termination
Date occurs before the date specified in your Notice and less than
three months following the Notice Date (e.g., if the Company elects
a Voluntary Termination Date earlier than the date specified in the
Notice), a lump sum amount equal to your monthly base salary as of
the Voluntary Termination Date for the time between the Voluntary
Termination Date and three months following the Notice Date;
or
(iii) If you and the Company
mutually agree to extend your service to a later date than the date
stated in your Notice, upon your Voluntary Termination Date, you
will receive: a lump sum amount equal to your monthly base salary
for each month you provided service beyond the date stated in your
Notice or for such period of time as you and the Company may
mutually agree, not to exceed 24 months (referred to as the
“additional period of time”) ; a lump sum amount as
provided under Section II B (iii) below except that the amount
will be calculated for the “additional period of time”;
and continued active medical benefits for the “additional
period of time” as described in Section II B below. If your
employment with the Company terminates pursuant to this Section I,
upon and following the Voluntary Termination Date, your other
compensation and benefits continue to be governed by the terms of
the plans in which you participate; provided however, that payments
and benefits under this Section I are in lieu of any other
involuntary separation benefits or severance payments which you may
be eligible to receive from the Company; and if you receive
severance pay and benefits under the Company’s Change in
Control Severance Plan, no payments will be made, or benefits
provided, under this Agreement.
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II.
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Company
terminates your employment .
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The Company may terminate your
employment at any time, with or without Cause, with the results
described below. In such case, the Company shall determine the
effective date of your termination (the “Involuntary
Termination Date”).
A. Involuntary Termination With
Cause . If the Company terminates your employment due to Cause,
you will receive no severance payment under this Agreement or any
other severance plan, policy or arrangement of the Company or any
of its affiliates. For purposes of this Agreement,
“Cause” means: (i) your willful and continued
failure to substantially perform your duties that has not been
cured within thirty days after a written demand for substantial
performance is delivered to you, which demand specifically
identifies the manner in which the Company believes that you have
not substantially performed your duties, or (ii) your willful
engagement in conduct which is demonstrably and materially
injurious to the Company,
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monetarily or otherwise. For purposes of clauses
(i) and (ii) of this definition, (x) no act, or
failure to act, on your part shall be deemed “willful”
unless done, or omitted to be done, by you not in good faith and
without reasonable belief that your act, or failure to act, was in
the best interest of the Company, and (y) in the event of a
dispute concerning the application of this provision, no claim by
the Company that Cause exists shall be given effect unless the
Board determines that there is clear and convincing evidence that
Cause exists and the Board finding to that effect is adopted by the
affirmative vote of not less than three quarters of the entire
membership of the Board (after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard by the
Board).
B. Involuntary Termination
Without Cause . If the Company terminates your employment for
reasons other than Cause, and you fulfill your obligations as set
forth in this Agreement, you shall be paid the following amounts
(which you acknowledge would not be due you in the absence of this
Agreement) on the first business day which is at least six months
after the Involuntary Termination Date, provided that, on or after
the Involuntary Termination Date, and at least 10 days prior to the
payment date, (i) you execute and return to the Company the
Release Agreement and (ii) any period within which you may
revoke the Release Agreement pursuant to the terms thereof has
expired without you having revoked the Release
Agreement:
(i) a lump sum amount equivalent to
two times your annual base salary plus your target annual bonus as
of the Involuntary Termination Date;
(ii) $50,000 in consideration of
execution and delivery of the Release Agreement as provided above;
and
(iii) a lump sum amount, in cash,
equal to 6% (two years multiplied by 3%) of the sum of your annual
base salary as of your Involuntary Termination Date plus your
target annual bonus for the year in which your Involuntary
Termination Date occurs.
In addition, for a period of two
years after the Involuntary Termination Date the Company shall
arrange to provide you, and anyone entitled to claim through you,
health (including medical, behavioral, prescription drug, dental
and vision) benefits substantially similar to those provided to
active employees, at no greater after tax cost to you than the
after tax cost to you immediately prior to the Involuntary
Termination Date. If the company contribution to these benefits
becomes taxable to you, you will be grossed up on these
contributions (with any gross up paid to you promptly but in no
event later than the end of your taxable year following the taxable
year in which you or the Company remits the related taxes). In
order to comply with 409A, the following shall apply to the health
care benefits provided pursuant to this paragraph, the costs of
which are not fully paid by you (the “Health
Benefits”). Any and all reimbursements of eligible expenses
made pursuant to the Health Benefits shall be made no later than
the end of the calendar year next following the calendar year in
which the expenses were incurred. The amount of expenses that are
eligible for reimbursement or of in-kind benefits that are provided
pursuant to the Health Benefits in any given calendar year shall
not affect the expenses that are eligible for reimbursement or
benefits to be provided pursuant to the Health Benefits in any
other calendar year, except as specifically permitted by Treasury
Regulation Section 1.409A-3(i)(iv)(B). Your right to the
Health Benefits may not be liquidated or exchanged for any other
benefit.
If your employment with the Company
terminates pursuant to this Section II, upon and following the
Involuntary Termination Date, your other compensation and benefits
continue to be governed by the terms of the plans in which you
participate; provided however, that payments
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and benefits under this Section II are in lieu
of any other involuntary separation benefits or severance payments
which you may be eligible to receive from the Company; and if you
receive severance pay and benefits under the Company’s Change
in Control Severance Plan, no payments will be made, or benefits
provided, under this Agreement.
Restrictive
Covenants
In light of the unique character of
your position with the Company, the business relationships you have
developed and will continue to develop while employed by the
Company, and your knowledge of the Company’s business affairs
including the Confidential Information (as defined below), and with
the acknowledgment of the continuing consideration which you will
receive from the Company as a member of its senior executive
management team, and the personal financial security which is
provided under this Agreement, or in the event of a change in
control as defined in the Company’s Change in Control
Severance Plan, you agree to the following Restrictive
Covenants:
Noncompetition
: During your employment and for a
period of two (2) years thereafter (regardless of whether the
termination of your employment is voluntary or involuntary), you
will not directly or indirectly provide services, whether as a
director, officer, partner, owner, employee, inventor, consultant,
advisor, agent, or otherwise, to any domestic or international
business or firm that is engaged or has plans to become engaged in
the manufacturing, fabricating, distributing or selling of aluminum
and/or aluminum related products for the aerospace, automotive,
packaging, or other aluminum fabricated product markets, the mining
of bauxite, conversion and refining of bauxite into alumina and/or
the sale or distribution of alumina or alumina related chemical
products or any other line of business in which the Company is
involved or becomes involved during your employment with the
Company (collectively, the “Aluminum Business”).
However, you may own up to five percent (5%) of the
outstanding securities of any publicly traded company.
It is not the