Exhibit 10.4
Employment Agreement
of
Xxxxx X. Xxxxxx
This EMPLOYMENT AGREEMENT is made and entered into effective as of January
1, 2002 by and between XXXXX X. XXXXXX ("Employee") and BUSINESS STAFFING, INC.
(the "Company").
Recitals
A. Employee is currently employed by Kaiser Ventures LLC ("Kaiser") as
Executive Vice President-Finance and Chief Financial Officer pursuant to that
certain Second Amended and Restated Employment Agreement between Employee and
Kaiser Ventures Inc. (now the Company pursuant to a merger by Kaiser Ventures
Inc. with and into Kaiser effective November 30, 2001 (the "Merger")) dated
effective April 11, 2001 (the "Kaiser Employment Agreement").
B. As a result of the Merger, Kaiser desires to terminate the employment of
Employee effective January 1, 2002, but to lease Employee from the Company to
perform services on behalf of Kaiser. Employee is willing to terminate the
existing Kaiser Employment Agreement without the collection of severance
benefits as provided in the Kaiser Employment Agreement provided that: (i) the
Company enters into this Agreement; (ii) Kaiser immediately transfers to the
Company all amounts necessary to fund the severance obligations that Kaiser
would have had under the Kaiser Employment Agreement and the Company assumes
such obligations; (iii) the Company assumes the responsibility for Xxxxxx'x
401(k) Plan, Money Purchase Plan and Supplemental Executive Retirement Plan and
Kaiser transfers such retirement plans and related funds to the Company, as
applicable; (iv) the Company assumes the responsibility for all payments earned
under the Long Term Transaction Incentive Plan and Kaiser funds the payments due
under the Long Term Transaction Incentive Plan; and (v) the Company assumes all
other benefit and compensation programs of Kaiser applicable to Employee.
C. The intent of this Agreement is to set forth the terms and conditions of
Employee's employment by the Company and his serving as a leased employee to
Kaiser.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Employment, Positions and Duties. The Company hereby employs Employee
upon the terms and conditions set forth in this Agreement. Employee acknowledges
and agrees that he will be a leased employee only to Kaiser. Employee's
positions with Kaiser as a leased employee continue to be Executive Vice
President and Chief Financial Officer. In such capacity, Employee shall have the
responsibilities and duties normally incident to such positions, including, but
not limited to, those duties and responsibilities set forth in Schedule "A"
attached hereto and incorporated herein by this reference and such other duties
and responsibilities as may be reasonably assigned to him from time-to-time by
Xxxxxx'x President or Chief Executive Officer. Employee's business time
commitment to the Company and as a leased employee to Kaiser at Xxxxxx'x
corporate offices will be an average of six (6) days per month with Employee's
work schedule to be coordinated with Xxxxxx'x Chief Executive Officer. There
shall be no reduction in Employee's annual base salary or benefits as a result
of Employee's reduced time commitment as provided herein. Kaiser and Employee
acknowledge the need for flexibility in Employee's work schedule so
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that Employee agrees to adjust his general schedule to give priority to, assist
in the preparation for, and attend important meetings for Kaiser or the Company
that may occasionally be scheduled at times other than Employee's general work
schedule.
2. Term. Employee's employment under the terms of this Agreement shall
commence as of January 1, 2002, and shall continue until terminated as provided
herein; provided, however, upon Employee's termination, Employee shall receive
the severance compensation provided herein. Notwithstanding the date of this
commencement of this Agreement, for purposes of the calculation of benefits or
for any other similar purpose, the Company shall credit Employee with the time
he was employed by Kaiser or any predecessor of Kaiser.
3. Base Salary. Except in connection with the payment of any severance as
provided herein, Employee's initial annual base salary shall be One Hundred
Twenty-Seven Thousand Three Hundred Five Dollars ($127,305) per year.
Notwithstanding anything contained in this Agreement to the contrary, for
the purposes of determining the amount of severance benefits to be paid to
Employee for any reason, Employee's base salary shall be deemed to be his base
salary while employed by Kaiser Ventures Inc. ("KVI") as of September 30, 1999
(which was $201,825), and not the new initial annual salary provided in this
Paragraph 3.
Prior to the first meeting of the Board of Managers of Kaiser in any
calendar year, the Human Relations Committee of the Board will review Employee's
salary and report its recommendations for any revision to the full Board of
Managers at such meeting. Kaiser will communicate its review to the Company and
the Company and Kaiser shall mutually agree as to any adjustments and Employee's
annual base compensation.
4. Bonus Program.
a. Discontinuance of Annual Performance Bonus. Employee acknowledges
that Kaiser has discontinued its historical annual performance bonus program
applicable to all executive officers for calendar years beginning in 2001.
Employee acknowledges and agrees that any future bonus shall be in the total
discretion of the Board of the Managers of the Company, as approved by Kaiser if
reimbursement for any such bonus is sought, except for: (i) the Retention Bonus
described in Paragraph 4.b.; (ii) any bonus pursuant to the long term
Transaction Incentive Plan described in Paragraph 4.c.; and (iii) any bonus
described in Paragraph 12.
b. Retention Bonus. Provided Employee remains in the employ of Kaiser
through and including June 30, 2003, the Company shall pay to Employee a bonus
("Retention Bonus") on that date equal to the sum of (i) six months annual base
salary (based on Employee's annual base salary in effect on September 30, 1999)
plus (ii) an amount equal to 26.9% of the base salary in effect on September 30,
1999 (this is equivalent to six months' average percentage performance bonus
while at Kaiser for the five (5) years prior to and including the final annual
bonus for the year 2000 paid under the former annual performance bonus program;
provided, such amount shall be determined as if Employee's base salary is no
less than his base salary in effect at KVI on September 30, 1999).
c. Long Term Incentive Plan. Employee shall be eligible to receive
payments in accordance with the terms of the Long Term Transaction Incentive
Plan adopted by Kaiser effective September 19, 2000, to be effective as of June
30, 2000 (the "Long Term Transaction
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Incentive Plan"). The Company has assumed the responsibility for all payments
under the Long Term Transaction Incentive Plan and shall pay any amount due
Employee under such plan. However, Employee acknowledges that Kaiser has
terminated the Long Term Transactions Incentive Plan effective as of January 1,
2002, with regard to future unearned payments and lieu thereof has issued Class
C Units to Employee under the terms of the Kaiser Amended and Restated Operating
Agreement dated October 7, 2002, as further amended by that certain Amendment to
Amended and Restated Operating Agreement dated effective January 15, 2002
(collectively the "Amended Operating Agreement"). Employee understands that
Class D Units may be issued to him in the future under the terms of the Amended
Operating Agreement.
5. Options and Other Equity Related Incentives. Employee shall be eligible
for the grant of incentive options, non-qualified options and other forms of
unit or equity related incentives (collectively "Equity Incentives") from
time-to-time in the discretion of the Equity Option Committee of the Board of
Managers. The timing, size and amount of any future Equity Incentives will be
determined by the Equity Option Committee of Kaiser.
It is acknowledged and agreed that all stock options granted to Employee by
Kaiser or it predecessor prior to the date of this Agreement are fully vested in
Employee and all outstanding options have been converted to the right to receive
Class A Units in Kaiser.
6. Other Benefits. Except as otherwise provided herein, Employee will be
entitled to participate in all benefits provided by the Company to its employees
and to senior executives in accordance with and subject to the Company's polices
and procedures as they may exist and change from time-to-time (although the
total amount of the benefit may be correspondingly reduced if it is based on
annual base salary), including, but not limited to, medical and dental
insurance, life insurance, disability insurance, 401(k) savings plan, any
pension plan, deferred compensation plan, education and seminar reimbursement,
and reimbursement of reasonable expenses for company business. These benefits
shall be at least at the same level as provided to Employee at the time of the
Merger, include life insurance for the benefit of Employee with a face amount of
not less than Employee's annual base salary in effect as of September 30, 1999,
except that the Company may self-insure if insurance is not available on a
commercially reasonable basis.
Notwithstanding the foregoing, Employee shall not: (i) accrue vacation
time; and (ii) be paid a car allowance. However, these provisions shall not be
construed to cause any reduction in the severance compensation and benefits as
provided in this Agreement. In addition to paying the normal and reasonable
business expenses typically reimbursed in the course of work for the Company,
the Company shall pay Employee's reasonable travel expenses to and from the
Company's or Xxxxxx'x corporate offices and reasonable hotel expenses while
working at Xxxxxx'x or the Company corporate offices. Employee shall pay for all
of his personal meals.
7. Death Benefits. In the event of Employee's death, the Company shall pay
to Employee's personal representative or his estate, Employee's salary and
benefits through the end of the month in which the death occurred plus a ratable
portion of Employee's anticipated bonus for the year through the date of
Employee's death plus the compensation and benefits that would be payable to
Employee upon termination without cause as provided in Paragraph 12 of this
Agreement. The proceeds from any life insurance shall be for the sole benefit of
Employee's designated beneficiaries or if there are no designated beneficiaries,
Employee's estate. Employee's estate or personal representative shall have at
least one (1) year after the date of Employee's death while in the employment of
the Company in which to exercise all vested Equity Incentives, unless the terms
of an Equity Incentive provides for a longer period of time.
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8. Disability Benefits. In the event of the disability of Employee for any
reason, the Company shall continue to pay to Employee his salary and benefits
less short-term disability payments until long-term disability payments are made
to Employee but in no event shall such salary and benefit payments continue for
longer than six (6) months from the date of disability. In addition, upon
permanent disability, the vesting of all retirement and deferral compensation
plans and all outstanding Equity Incentives shall continue to occur for a period
of two (2) years after the date of disability in the same manner as if Employee
were still employed by the Company and serving as a leased employee during that
period.
9. Deductions. Applicable federal and state income taxes, social security
contributions (FICA), Medicare contributions, medical insurance premiums and any
other appropriate or customary deductions shall be withheld from any
compensation paid to Employee by Kaiser.
10. Transition Payment. In recognition of the reduction of Employee's time
commitment to Kaiser and now the Company as well as his eventual transition from
being an employee of the Company, Employee was paid a transition payment of
$155,203.50 on January 2, 2002 ("Transition Payment"). This Transition Payment
represents an acceleration of the payment of severance in an amount equal to the
sum of (i) six months of Employee's annual base salary (based on Employee's
annual base salary at KVI in effect as of September 30, 1999); and (ii) an
amount equal to 26.9% of the base salary as determined in (i) above.
11. Constructive Termination. Employee shall be deemed to have been
constructively discharged upon the occurrence of any of the following events:
a. The assignment to Employee of duties materially and adversely
inconsistent with Employee's positions at Kaiser as a leased employee as of the
effective date of this Agreement. This includes a change in reporting
responsibilities, authority including title, or responsibilities; provided,
however, a lateral transfer within Kaiser or to an Affiliate shall not be deemed
a constructive termination;
b. Any requirement that Employee permanently relocate to an office more
than 50 miles from the then location to which he is assigned as of the effective
date of this Agreement; and/or
c. Any failure to provide Employee with compensation and benefits in
the aggregate on terms not materially less favorable than those enjoyed by
Employee under this Agreement as of the effective date of the Agreement, or the
subsequent taking of any action that would materially reduce any of Employee's
compensation and benefits in effect as of the date of the Agreement unless such
compensation and benefits are substantially equally reduced for executive
officers of the Company as a group (as measured by a percentage) or there is
less than a ten percent (10%) reduction in compensation or benefits.
then, at Employee's option, exercisable within ninety (90) days of the date
Employee knew, or should have known exercising reasonable care, of the
occurrence of any of the foregoing events and the expiration of any applicable
cure period, Employee shall have the right to terminate his employment by
written notice to the Company, and on the date of such termination the Company
will pay Employee the compensation and benefits described in Paragraph 12 below.
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12. Compensation Payable Upon Actual or Constructive Termination. In the
event Employee is terminated by the Company as a leased employee for any reason
(including a constructive termination) except for death, permanent disability,
or for cause, as defined below, the Company shall give Employee ninety (90) days
advance written notice of termination and the Company shall pay to Employee only
the following compensation and benefits as severance following the expiration of
the ninety (90) day period:
a. if the termination is effective after March 31 of any year, an
amount equal to the pro rata portion of the annual performance bonus, if any,
that Employee would have been eligible to earn for the year of termination based
upon the performance bonus, if one is paid to his peers for the year of
termination by action of the Company and Board of Managers of Kaiser action,
assuming he would have received a bonus relatively equal to the amount received
by his peers;
b. if not previously paid to Employee, the Retention Bonus due Employee
under Paragraph 4 of this Agreement shall be immediately paid to Employee;
c. any payments that become due Employee under the terms of Xxxxxx'x
Long Term Transaction Incentive Plan and distribution, if any, or the Class C
and Class D Units shall continue to be made in accordance with their respective
terms (which distributions can continue to be made to Employee beyond the date
of Employee's termination;
d. the Company shall continue to provide and pay its portion of all of
Employee's health, welfare, insurance and other benefits for a period of twelve
(12) months following the date of termination, including the Company's portion
of any retirement and deferred compensation plan such as the Company's 401(k)
plan. After such termination, Employee shall be entitled, for a period of three
years to exercise his Equity Incentives as to any then vested, including any
options vesting within one year of termination as provided in the next sentence,
notwithstanding any other applicable provision contained in any option
agreement. In addition to the foregoing related to stock options, with respect
to any restricted Equity Incentives, Employee shall continue to vest in such
securities for a period of one-year following termination. Employee shall also
for the three year period in which he is entitled to exercise his vested stock
options as provided in this Paragraph 12 receive the benefit of any favorable
changes to outstanding Equity Incentives made by the Company, but in all cases
Employee's agreements may not be modified without Employee's written consent;
and
Except for payments made pursuant to the Long Term Transaction Incentive
Plan or distributions on the Class C and Class D Units, all amounts due Employee
shall be payable in one lump sum or, at Employee's option, over such period of
time not to exceed twelve (12) months. Employee shall have no duty to seek other
employment during this period of time and there shall be no offset for any
compensation paid to Employee from any other source. If after termination of
Employee's employment, the parties shall negotiate the terms of such consulting
agreement which shall be documented in an agreement executed by the parties.
To illustrate the application of Paragraphs 12.b. Employee was terminated
in February 1, 2002, without cause, having already been paid his Transition
Payment on January 2, 2002, Employee would receive his Retention Bonus which
would amount to six months' salary based upon Employee's base salary in effect
on September 30, 1999, plus 26.9% of the greater of Employee's then current
annual base salary or the base salary in effect on September 30, 1999. If
Employee was terminated on July 1, 2003, without cause, after having been paid
his Transition Payment on January 2, 2002, and his Retention Bonus on June 20,
2003, Employee would not be
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paid any additional cash compensation as severance as he would have already
received his total cash severance compensation package of $310,407 (Transition
Payment and Retention Bonus). In both cases, however, Employee would be entitled
benefits to be provided to him for twelve (12) months pursuant to Paragraph 12.,
and any payments that may be due him under the Long Term Transaction Incentive
Plan or distributions on Class C and Class D Units pursuant to Paragraph 12c.
13. Possible Reduction in Certain Benefits.
a. Except as provided in Paragraph 12(b) below, Employee shall in no
circumstances receive "payments in the nature of compensation" from the Company
which would result in "excess parachute payments" (as that term is defined in
Sections 280G and 4999 of the Internal Revenue Code of 1954, as amended, or any
equivalent or analogous term as shall in the future be defined in any law or
regulation governing the amount of severance compensation that may be paid
without penalty to an officer of a company upon a change in control of the
Company). In the event either Employee or the Company shall be advised in
writing by his or its counsel that Employee would receive excess parachute
payments if all payments under all contacts between Employee and the Company
were made, such opinion shall be confidentially disclosed to the other party. If
it is mutually determined that such payments would trigger the excess parachute
payments provisions, Employee shall receive only such compensation and benefits
under his contracts with the Company (not to exceed those permitted without
constituting excess parachute payments) which he, in his sole discretion, has
designated in written notice to the Company. Employee shall have a minimum of
thirty (30) days in which to make such written designation. In the event of a
disagreement between the counsel of the respective parties as to whether a
payment would result in excess parachute payments, such counsel shall jointly
designate an independent tax counsel (whose fees shall be paid by the Company)
within 10 days who shall promptly make a conclusive determination of the matter.
b. Notwithstanding anything else to the contrary, in the event Employee
is terminated pursuant to Paragraph 12 above, Employee shall have the right, in
his sole discretion, to elect to receive all or any part of the compensation
payable to him upon termination (or which would have been due under Paragraph 12
but for a previous election under Paragraph 13(a)) without regard to whether any
such amounts may constitute "excess parachute payments." If Employee fails to
provide the Company a written designation within thirty (30) days, he shall be
presumed to have elected to receive all compensation and benefits due him
without regard to whether any such compensation or benefits shall constitute
"excess parachute payments."
c. Nothing in this Paragraph 13 shall be construed or deemed to be a
forfeiture of any compensation or benefits that Employee may elect not to
accelerate due to any concern about the receipt of "excess parachute payments."
14. Termination for Cause. If the Company elects to terminate Employee's
employment for cause (as defined below Paragraph 15 below), Employee's
employment will terminate on the date fixed for termination by the Company and
thereafter the Company will not be obligated to pay Employee any additional
compensation, other than the compensation due and owing up to the date of
termination and as may be required by law. After such termination, Employee
shall be entitled, for a period of one hundred and twenty (120) days, to
exercise any Equity Incentives that are vested as of the date of termination.
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15. Definition of "Cause." "Cause" for the purposes of this Agreement shall
mean any of the following:
a. Willful breach by Employee of any provision of this Agreement,
provided, however, if the breach is not a material breach, the Company shall
give Employee written notice of such breach and Employee shall have thirty (30)
days in which to cure such breach. No written notice or cure period shall be
required in the event of a willful and material breach of this Agreement by
Employee;
x. Xxxxx negligence or dishonesty in the performance of Employee's
duties or responsibilities hereunder;
c. Engaging in conduct or activities or holding any position that
materially conflicts with the interest of, or materially interferes with
Employee's duties and responsibilities to the Company, Kaiser or their
Affiliates; or
d. Engaging in conduct which is materially detrimental to the business
of the Company, Kaiser or their Affiliates.
16. Voluntary Termination. Employee's employment by the Company may be
terminated at any time upon the parties' mutual written agreement or voluntarily
by either party upon ninety (90) days prior written notice to the other. Upon
termination of Employee by the Company for any reason (including a constructive
termination) except for death, permanent disability or for cause, Employee shall
receive the compensation and benefits set forth in Paragraph 12 of this
Agreement. In the event of Employee's voluntary termination, the Company shall
not be obligated to pay Employee any compensation except as follows: (i) the
compensation due and owing as through the date of termination and as may be
required by law; (ii) any distributions on the Class A, Class B and Class D
Units held by Employee (which distributions can continue to be made to Employee
beyond the date of Employee's termination ; and (iii) Employee shall also
receive six (6) months (instead of twelve (12) months) of the paid benefits
described in Paragraph 12(f). After voluntary termination by Employee, Employee
shall be entitled for a period of one hundred twenty (120) days to exercise any
Equity Incentives that are vested as of the date of termination.
17. Confidentiality.
a. Employee's Obligations. Employee agrees that (a) except as provided
in this Agreement Employee shall maintain the confidential nature of any
Proprietary Information received or acquired by him, and (b) Employee shall use
such Proprietary Information solely for the purpose of meeting his obligations
under this Agreement and not in connection with any other business or activity.
"Proprietary Information" means all oral, written or recorded information about
or related to the Company, Kaiser or any of their Affiliates or its or their
technology, assets, liabilities, or business, whether acquired before or after
the date hereof, and regardless of the manner in which it is acquired, together
with any documents or other materials prepared by Employee which contain or
reflect such information. After termination of employment upon demand of the
Company, Kaiser, as applicable, Employee agrees to return or destroy any and all
materials containing any Proprietary Information.
b. Company'S Obligations. The Company agrees that it shall maintain and
provide information regarding Employee in accordance with generally accepted
industry and business practices and that it will seek to require Kaiser to
follow the same requirements.
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c. Limitations on Confidential Obligations and Use Restrictions. The
restrictions in Paragraph 17(a) above do not apply to information which Employee
can demonstrate (i) is then in the public domain by acts not attributable to
such disclosing party or (ii) is hereafter received on an unrestricted basis by
such Employee from a third party source who, to Employee's knowledge after due
inquiry, is not and was not bound by confidentiality obligations to the Company,
Kaiser or any Affiliate thereof. In addition, Employee, the Company and Kaiser
are permitted to disclose any Proprietary Information as necessary in the
defense or prosecution of any legal action.
d. Actions if Disclosure Required. If Employee is required by law to
make any disclosure otherwise prohibited hereunder, such party shall use its
best efforts to provide the other with prompt prior notice where possible so
that (a) the other party (with the reasonable cooperation of the party required
to make such disclosure) may seek an appropriate protection order or other
remedy and/or (b) the parties can seek in good faith to agree on the appropriate
scope and approach to disclosure. If a protective order or other remedy is not
obtained, the party required to make such disclosure may furnish only that
portion of information protected hereby which it is legally compelled to
disclose and shall use its reasonable efforts to obtain confidential treatment
for all information so disclosed.
e. Injunction. Each party agrees that remedies at law may be inadequate
to protect against breach of this Paragraph 17, and hereby agrees to the
granting of injunctive relief without proof of actual damage.
18. Arbitration of Disputes. If Employee and the Company cannot resolve a
dispute (whether arising in contract or tort or any other legal theory, whether
based on federal, state or local statute or common law and regardless of the
identities of any other defendants) that in any way relates to or arises out of
this Agreement, the termination of Employee's employment relationship with the
Company, Kaiser or any Affiliate thereof, (without limiting the generality of
any other Paragraph herein), then such dispute shall be settled as follows:
a. The Company and Employee agree to jointly select a judicial officer
who is affiliated with the Judicial Arbitration and Mediation Service, or such
other equivalent organization as the Company and Employee may mutually select,
to act as the trier of fact and judicial officer in such dispute resolution;
b. If the Company and Employee are unable to agree upon a particular
judicial officer, then the decision shall be made by the chief executive officer
of the Judicial Arbitration and Mediation Service, after consulting with Kaiser
and Employee;
c. The Company and Employee shall have the same rights of discovery as
if the dispute were being resolved in the Superior Court of the State of
California. However, the judicial officer shall, on his own motion, or the
request of either Kaiser or Employee, have the authority to extend or reduce the
time periods therefore; and,
d. The judicial officer serving hereunder shall be designated as a
referee under the provisions of Title VIII, Chapter 6 of the California Code of
Civil Procedure (Sections 638 through 645. 1, inclusive). Payment for the
services of the judicial officer and the rights and procedure of appeal, and/or
other review of the decision, shall be made as provided in such sections.
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The judicial officer shall have the right to grant injunctive relief,
specific performance and other equitable remedies.
19. Miscellaneous.
a. Entire Agreement; Amendments. This Agreement states the entire
understanding and agreement between the parties with respect to its subject
matter as of the date of this Agreement, and may only be amended by a written
instrument duly executed by Employee and the Company and to the extent that it
directly impacts Kaiser, the written consent of Kaiser.
b. Assignment. This Agreement and the rights and obligations of
Employee may not be sold, transferred, assigned, pledged or hypothecated by
Employee.
c. Non-Waiver. Failure to insist upon strict compliance with any
provision of this Agreement or the waiver of any specific event of
non-compliance shall not be deemed to be or operate as a waiver of such
provision or any other provision hereof or any other event of non-compliance.
d. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Company, its successors and assigns and, Employee's heirs,
successors, and legal or personal representatives.
e. Headings. The headings throughout this Agreement are for convenience
only and shall in no way be deemed to define, limit, or add to the meaning of
any provision of this Agreement.
f. Context. Whenever required by the context, the singular shall
include the plural, the plural the singular, and one gender such other gender as
is appropriate.
g. Notices. All notices, request, demands, consents and other
communications hereunder shall be transmitted in writing and shall be deemed to
have been duly given when hand delivered or sent by certified United States
mail, postage prepaid, with return by certified requested, addressed to the
parties as follows:
Business Staffing, Inc.
0000 X. Xxxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
Attention: General Counsel
Xxxxx X. Xxxxxx
0000 Xxx Xxxxx Xxxx
Xxxx, XX 00000
h. Costs. In any action taken to enforce the provisions of this
Agreement, the prevailing party shall be reimbursed all reasonable costs
incurred in such legal action including reasonable attorney's fees in such
action.
i. Severability. If any provision or clause of this Agreement, as
applied to any party or circumstances shall be adjudged by a court to be invalid
or unenforceable, said adjudication shall in no manner effect any other
provision of this Agreement, the application of such provision to any other
circumstances or the validity or enforceability of this Agreement.
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j. Definition of Affiliate and Enforceability by Kaiser. The term
"Affiliate" for purposes of this Agreement shall mean any person or entity now
or hereafter in control, controlled by or in common control with Kaiser and the
Company. It shall also include any direct or indirect subsidiary of such
Corporation and any company in which Kaiser has more than a ten percent (10%)
ownership interest. The parties agree that Kaiser shall be a third party
beneficiary of this Agreement and shall have the right to enforce its terms.
k. Acknowledgment Regarding ISO's. Employee acknowledges that he is
responsible for the tax consequences of all severance compensation he may
receive and that certain actions may need to be taken by Employee within limited
periods of time to preserve the tax status of any incentive stock options. The
Company makes no representation or warranty that any past or future grant of a
stock option or Equity Incentives to Employee qualifies as an incentive option.
l. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement to be effective as of the day and year first written above not
withstanding the actual date of signature.
"Employee" "Kaiser"
Xxxxx X. Xxxxxx Kaiser Ventures Inc.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------ -----------------------
Xxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxx
President
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Consent of Human Relations Committee
of
Kaiser Ventures LLC
to
Xxxxx X. Xxxxxx Employment Agreement
The Human Relations Committee of Kaiser Ventures LLC ("Kaiser") hereby
consents to the employment agreement between Business Staffing, Inc. (the
"Company") and Xxxxx X. Xxxxxx set forth above and the payment of all sums of
Kaiser that may be required to reimburse the Company under the terms of such
agreement as provided in the Administrative Services Agreement between the
Company and Kaiser dated as of January 1, 2002.
Kaiser Ventures LLC
Human Relations Committee
By: /s/ Xxxx X. Xxxx
-------------------------------
Xxxx X. Xxxx, Chairman
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Exhibit 10.4
Schedule "A"
XXXXX X. XXXXXX
Executive Vice President - Finance & CFO
This position will report to the President and Chief Executive Officer of
Kaiser Ventures LLC. The positions for Kaiser Ventures LLC are to be filled by
Business Staffing, Inc. through the services of Xxxxx X. Xxxxxx.
Responsibilities:
This position has the responsibility to manage all accounting, finance,
tax, and treasury functions for Kaiser and its subsidiaries; to represent Kaiser
with all outside entities coming under the purview of corporate finance; to
ensure all reporting requirements are met in a satisfactory and timely manner;
to assist senior management in analyzing, evaluating and pursuing new business
and growth opportunities; to manage Xxxxxx'x annual budget and capital plan
processes; to manage Xxxxxx'x financial analysis and modeling function; to
manage Xxxxxx'x insurance program; and to monitor all project development
activities from the financial perspective. These duties include the following:
. Assist CEO in analyzing, evaluating and pursuing business and growth
opportunities.
. Oversee investor relations program implementation,
shareholder/investor communications.
. Oversee implementation of real estate financing strategy.
. Manage and oversee financial aspects of SEC compliance.
. Oversee the treasury and controller functions. Oversee all audit
procedures, outside auditors, and report to the Chairman of the Audit
Committee.
. Manage all aspects of the accounting function of Kaiser, employing
Generally Accepted Accounting Procedures.
. Manage Xxxxxx'x annual budget and capital plan processes.
. Manage Xxxxxx'x financial analysis and modeling function.
. Manage all tax planning and reporting.
. Manage all debt and equity structuring.
. Manage all insurance programs.
. Manage and oversee the Kaiser Eagle Mountain, operations, insuring
both smooth functioning of all administrative departments and
operations.
. Monitor all project development activities from the financial
perspective.
. Participate in major negotiations with third parties.
. Direct and manage, in coordination with the Executive Vice President
and General Counsel, the operations of Kaiser in the absence of the
Chief Executive Officer.
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