EXHIBIT 10.3.1
First Amendment
to the
Amended and Restated Employment Agreement
of
Xxxxxxx X. Xxxxxxxx
This FIRST AMENDMENT TO THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT OF
XXXXXXX X. XXXXXXXX ("First Amendment") is made and entered into as of January
6, 2000, by and between XXXXXXX X. XXXXXXXX ("Employee") and KAISER VENTURES
INC. ("Kaiser").
Recitals
A. Employee is currently employed by Kaiser as Chairman of the Board,
Chief Executive Officer and President and has an existing Amended and Restated
Employment Agreement with Kaiser dated effective January 15, 1998 (the
"Employment Agreement"); and
B. Employee and Kaiser have mutually agreed to the modification of
certain provisions of the Employment Agreement and therefore Employee and Kaiser
desire to amend the Employment Agreement solely as provided herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment of Paragraph 11 of Employment Agreement. Paragraph 11 of the
Employment Agreement is hereby amended as follows:
(a) Subparagraph 11.b. Subparagraph 11.b. of the Employment
-----------------
Agreement is hereby deleted in its entirety and the following new
subparagraph 11.b. is substituted therefore:
"b. any acquisition of common stock by a person or "group"
(as defined in section 13(d) of the Securities Exchange Act of
1934), resulting in the "beneficial ownership" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934) by that
person or group of more than 35% of the capital stock of
Kaiser."
(b) Subparagraph 11.c. Subparagraph 11.c of the Employment Agreement
-----------------
is hereby deleted in its entirety an the following new subparagraph 11.c.
is substituted therefore:
"c. following the date of this Amendment there has been an
aggregate of net assets with a cumulative value that exceeds the
greater of (i) $30,000,000 or (ii) 30% of the net equity of
Kaiser at the time of the distribution (whether by dividend or
repurchase of stock) distributed to any one or more Kaiser
shareholders."
(c) Addition of Subparagraphs 11.d. and 11.e. Paragraph 11 of the
----------------------------------------
Employment Agreement is amended by the addition of the following new
subparagraphs:
"d. During any period of two consecutive years, the
individuals who at the beginning of such period constitute the
Board of Directors of
1
the Company, cease for any reason, to constitute at least a
majority thereof, unless the election, or the nomination for
election by the Company's shareholders, of each new director has
been approved at the time of such election or nomination by a
vote of at least two-thirds of the directors then still in
office who were directors at the beginning of the period; or
e. The Board of Directors or any designated committee
determines, in its sole discretion, that any person (such as
that term is used in Sections 13(d) and 14(d) of the Exchange
Act) directly or indirectly exercises a controlling influence
over the management or policies or the Company."
2. Amendment of Paragraph 12 of the Employment Agreement. Subparagraph
12.c. of the Employment Agreement is hereby deleted in its entirety, except for
that portion of the paragraph commencing with "then, at Employee's option---"
and ending with the words "Paragraph 13 below," and the following new portion of
Subparagraph 12.c. is substituted therefor:
"c. Any failure to provide Employee with compensation and
benefits in the aggregate on terms that are materially less
favorable than those enjoyed by Employee under this Agreement
immediately prior to a Material Change, or the subsequent taking
of any action that would materially reduce Employee's
compensation and benefits in effect at the time of the Material
Change."
3. Amendment of Paragraph 13 of the Employment Agreement. Paragraph 13 of
the Employment Agreement is hereby amended as follows:
(a) Subparagraph 13.a. The phrase "as measured by the preceding
-----------------
year's bonus" in subparagraph 13.a. is hereby deleted in its entirety and
the following new phrase is substituted therefore in Subparagraph 13.a.:
"as measured by Employee's average percentage bonus over the past five
years (or such lesser period of time during which Employee was eligible to
receive a bonus)."
(b) Subparagraph 13.b. The word "one" in Subparagraph 13.b. is
-----------------
hereby deleted and replaced with the word "two" and the phrase "averaged
over the two (2) immediately preceding years" is replaced with the phrase
"as measured by Employee's average percentage bonus over the past five
years (or such lesser period of time during which Employee was eligible to
receive a bonus)."
(c) Subparagraph 13.c. The word "will" in Subparagraph 13.c is hereby
-----------------
deleted and replaced with the word "with," such that the end of
Subparagraph 13.c reads "in proportion to shares owned together with all
other shareholders."
(d) Additional Paragraph. Paragraph 13 of the Employment Agreement
--------------------
is hereby amended by the addition of the following paragraph at the end of
the current Paragraph 13.
"For purposes of this Agreement, "average percentage bonus
over the past five years" shall mean the average percentage
bonus received by Employee for the five years preceding the year
of termination (or for such lesser period in which bonus
payments were received) as applied to the Employee's current
annual base salary."
2
3. Amendment of Paragraph 15. Paragraph 15 of the Employment Agreement
is hereby deleted in its entirety and the following new Paragraph 15
is substituted therefore:
Termination Without Cause. In the event Kaiser elects to terminate
-------------------------
Employee's employment without cause (as defined below) during the term of
this Agreement, then Kaiser agrees to pay Employee an amount equal to two
year's annual base salary (based on Employees then current annual base
salary) and continue to provide and pay its portion of all of Employee's
health, welfare, insurance and other benefits for a period of twenty-four
(24) months following the date of termination, including Xxxxxx'x portion
of any retirement and deferred compensation plan such as Xxxxxx'x 401(k)
plan. During such twenty-four (24) month period, Employee shall be
entitled to exercise his stock options as to any then vested, including any
options vesting within that two year period, 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 stock or other stock related incentives,
Employee shall continue to vest in such securities for a period of two
years following termination. If Employee is terminated before or after a
Material Change as provided in Paragraph 12, Employee shall receive the
additional severance compensation provided in Paragraph 13.
4. Amendment of Paragraph 16. Paragraph 16 of the Employment Agreement is
hereby amended by deleting the reference to "ninety (90) days" and substituting
therefore "one hundred twenty (120) days."
5. Amendment of Paragraph 18. Paragraph 18 of the Employment Agreement is
hereby amended by deleting the reference to "ninety (90) days" and substituting
therefore "one hundred twenty (120) days."
6 Ratification of Employment Agreement as Amended. The Employment
Agreement is not amended in any respect except as expressly provided herein, and
the Employment Agreement as amended by this First Amendment is hereby ratified
and approved in all respects
7 Governing Law. This First Amendment 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 First Amendment
to the Employment Agreement to be effective as of the day and year first written
above not withstanding the actual date of signature.
"Employee" Kaiser"
Xxxxxxx X. Xxxxxxxx Kaiser Ventures Inc.
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------------ -------------------------------------
Xxxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxx, Executive Vice
President & Chief Financial Officer
By: /s/ Xxxx X. Xxxx
-------------------------------------
Xxxx X. Xxxx, Chairman of the
Human Relations Committee
3
