<PAGE>
SECURITIES AND EXCHANGE COMMISSION PRIVATE
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 5)
Kaiser Ventures, Inc.
(Name of Issuer)
Common Stock, $0.03 Par Value
(Title of Class of Securities)
483088 10 0
(Cusip Number)
Thomas M. Barnhart, II
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 480
Cincinnati, OH 45236
(513) 985-3200
(Name, address and telephone number of person
authorized to receive notices and communications)
November 22, 1999
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of
this Schedule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being
paid with this statement [ ].
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1. NAME OF REPORTING PERSONS
S.S. or I.R.S. IDENTIFICATION NO.S OF ABOVE PERSONS
Pacholder Associates, Inc. 31-1089398
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
Inapplicable - Investment Advisor
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
State of Ohio
7. SOLE VOTING POWER
689,048
8. SHARED VOTING POWER
-0-
9. SOLE DISPOSITIVE POWER
689,048
10. SHARED DISPOSITIVE POWER
-0-
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
689,048
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5%
14. TYPE OF REPORTING PERSON*
IA, CO
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This Amendment No. 5 to Schedule 13-D is filed by Pacholder
Associates, Inc. ("PAI") to amend its originally filed Schedule
13-D dated May 23, 1994 (as amended on August 4, 1994, September
22, 1994, September 19, 1996 and October 20, 1997), relative to
the Common Stock $0.03 par value of Kaiser Ventures, Inc. (the
"Company"). Items not included in this Amendment are either not
amended or not applicable.
Item 4. Purpose of Transaction.
______________________
Since April 1, 1994, PAI has acted as financial advisor to
the Pension Benefit Guaranty Corporation ("PBGC") in the voting,
acquisition or sale of securities of the Company. The PBGC
obtained 2,597,339 shares of the Company in exchange for pre-
petition debt held by the PBGC in the Company, pursuant to the
Plan of Reorganization filed by the Company and approved by the
Bankruptcy Court in September, 1988. The Company exited
bankruptcy in November, 1988. The PBGC sold 500,000 shares in an
initial public offering on February 11, 1993.
On September 16, 1994, the Board of Directors of the Company
added William J. Morgan, President of PAI, to the Board of
Directors of the Company. On November 22, 1999, Mr. Morgan
resigned as a director.
As financial advisor to the PBGC, PAI has considered various
methods by which the value of the shares it manages could be
enhanced. On October 20, 1997, PAI entered into a Cooperation
Agreement with The Coleridge Group ("Coleridge") (the
"Agreement"). Coleridge has investment authority with
respect to shares in the Company held by the New Kaiser Volunteer
Employees' Beneficiary Association ("VEBA"). A copy of the
Agreement was filed as Exhibit O to Amendment No. 4 to this
Schedule 13D. Under the Agreement, PAI and Coleridge agreed to
meet to discuss certain matters relating to the Company
including, but not limited to: historical evaluations of Company
performance; potential opportunities and/or prospects for the
Company; review of strategies advanced by the Company and the
effects of those strategies on shareholders; analysis of
shareholder interests and needs; and specific strategies.
In addition, to the extent either PAI or Coleridge was
presented with an strategy not contemplated by the Agreement, it
agreed to disclose fully such additional strategy to the other
and each was given the opportunity to participate on a pro rata
basis in any such additional strategy. As described in Item 5(c)
below, on November 22, 1999, 1,693,551 of the shares held by the
PBGC were sold to the Company. This was done at the same time as
a sale of shares by VEBA to the Company.
Following the sale, the PBGC holds 403,788 outstanding
shares and has the right to purchase an additional 285,260 shares
at a price of $17.00 per share under the terms of a stock
purchase warrant. The stock purchase warrant is currently
exercisable and expires on September 30, 2004. See Item 5(c)
below.
As financial advisor to the PBGC, PAI is considering various
methods by which the value of the shares it continues to manage
may be enhanced. PAI may meet with management of the Company or
other significant shareholders concerning such matters or may
sell such shares in either private or public transactions. Any
determination by PAI to take any of the actions listed in
sub(a)-(j) below will be based on various factors, including but
not limited to, the Company's financial condition, business and
prospects, other developments concerning the Company, price
levels of the Company's common stock, other opportunities
available to the PBGC, general economic, monetary and stock
market conditions, and other applicable business and legal
considerations.
As of the date of this filing, and other than as set forth
above, PAI has no plans or proposals which relate to or would
result in any of the following:
(a) The acquisition of securities or the disposition of the
securities of the Company;
(b) An extraordinary corporate transaction, such as a
merger, reorganization, or liquidation, involving the Company or
any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of
the Company of any of its subsidiaries;
(d) Any change in the present board of directors or
management of the Company, including any plans or proposals to
change the number or term of directors or to fill any existing
vacancies on the board;
(e) Any material change in the present capitalization or
dividend policy of the Company;
(f) Any other material change in the Company's business or
corporate structure;
(g) Changes in the Company's charter, bylaws, or
instruments corresponding thereto or other actions which may
impede the acquisition or control of the issuer by any person;
(h) Causing a class of securities to be delisted from a
national securities exchange or to cease to be authorized to be
quoted inan inter-dealer quotation system of a registered
national securities association;
(i) A class of equity securities of the Company becoming
eligible for termination of registration pursuant to Section
12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Company
_____________________________________
(a) Pursuant to the contract between the PBGC and PAI, PAI
beneficially owns, 689,048 common shares, or 10.5% of all issued
and outstanding shares giving effect to the exersize of a warrant
to purchase 285,260 shares.
(b) As long as the contract between the PBGC and PAI is in
effect, PAI has the power to vote and dispose of the 689,048
shares held by the PBGC.
(c) On November 22, 1999, the PBGC sold 1,693,551 shares to
the Company. This sale was carried out under the terms of a
Stock Purchase Agreement dated November 22, 1999. The price paid
was $13.00 per share in cash, warrants to purchase 285,260 shares
of the Company pursuant to a Stock Purchase Warrant dated
November 22, 1999, and certain contingent payment rights pursuant
to a Contingent Payment Agreement dated November 22, 1999. The
Company has agreed to register the 285,260 shares for resale
under the Securities Act of 1933, pursuant to a Registration
Rights Agreement dated as of November 22, 1999. Each of these
Agreements is filed as an Exhibit to this Schedule.
(d) The PBGC.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings, or
___________________________________________
Relationships with Respect to Securities of the Issuer
______________________________________________________
Information respective to Item 6 is set forth in Item 2
above.
Item 7. Material to be Filed as Exhibits
________________________________
Exhibit Number Title of Document Exhibit Page
A. Names and addresses of officers and *
directors of PAI
B. Contract between the PBGC and PAI *
C. Modification No. 1 to Contract **
dated 5/23/94
D. Modification No. 2 to Contract **
dated 6/23/94
E. Modification No. 3 to Contract **
dated 9/28/94
F. Modification No. 4 to Contract **
dated 12/13/94
G. Modification No. 5 to Contract **
dated 1/4/95
H. Modification No. 6 to Contract **
dated 4/7/95
I. Modification No. 7 to Contract **
dated 9/13/95
J. Modification No. 8 to Contract **
dated 11/1/95
K. Modification No. 9 to Contract **
dated 12/1/95
L. Modification No. 10 to Contract **
dated 12/1/95
M. Modification No. 11 to Contract **
dated 8/12/96
N. Modification No. 12 to Contract **
dated 8/30/96
O. Cooperation Agreement dated October 20,
1997 between Pacholder Associates, Inc.
and The Coleridge Group. ***
P. Stock Purchase Agreement between Kaiser
Ventures, Inc. and the Pension Benefit
Guaranty Corporation dated as of the 22
day of November, 1999.
Q. Stock Purchase Warrant dated as of
November 22, 1999.
R. Contingent Payment Agreement between
Kaiser Ventures, Inc. and the Pension
Benefit Guaranty Corporation dated as
of November 22, 1999.
S. Registration Rights Agreement dated
as of November 22, 1999.
* Incorporated by reference to Schedule 13-D original filing
dated May 23, 1994
** Incorporated by reference to Schedule 13-D Amendment No. 1
filed by PAI on September 20, 1996 with reference to
Uniroyal Technology Corporation
*** Incorporated by reference to Amendment No. 4 to Schedule
13-D filing dated October 20, 1997.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Pacholder Associates, Inc.
November 24, 1999
Date
/s/ Thomas M. Barnhart, II
Signature
Senior Vice President
and Associate General Counsel
Title
Exhibit P
STOCK PURCHASE AGREEMENT
________________________
This STOCK PURCHASE AGREEMENT ("Agreement") is made and
entered into this 22nd day of November, 1999, by and between
KAISER VENTURES INC., a Delaware corporation, ("Kaiser") and the
Pension Benefit Guaranty Corporation ("PBGC").
RECITALS
A. PBGC owns shares of the $.03 par value common stock of
Kaiser which PBGC received in connection with the Chapter 11
bankruptcy reorganization of Kaiser Steel Corporation.
B. The Board of Directors of Kaiser, having considered the
recommendations of its duly authorized Independent Special
Committee, has determined that the acquisition by Kaiser of the
PBGC Shares (as defined below) is in the best interests of the
nonselling shareholders of Kaiser.
C. The parties desire to enter this Agreement and to pursue
the transaction contemplated hereby (the "Transaction") pursuant
to which Kaiser will purchase 1,693,551 shares of the Kaiser
common stock (the "PBGC Shares") owned by PBGC upon the terms and
conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual
promises and covenants contained herein, and for other good and
valuable consideration, the parties hereto agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and
___________________________
conditions of this Agreement, Kaiser hereby purchases from PBGC,
and PBGC hereby sells to Kaiser, the PBGC Shares.
2. Purchase Price and Payment Terms. The purchase price
________________________________
payable by Kaiser to PBGC for the PBGC Shares (the "Purchase
Price") consists of (i) a fixed per share payment (ii) Warrants,
and (iii) a contingent payment, which is being paid as follows:
2.1 Fixed Payment. A fixed payment of $13.00 per
_____________
share for a total fixed purchase price of $22,016,163 paid by
wire transfer of immediately available funds contemporaneously
herewith.
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2.2 Warrant. Contemporaneously herewith, Kaiser is
_______
delivering to PBGC a warrant, in the form attached hereto as
Exhibit A (the "Warrant"), to purchase 285,260 shares of Kaiser
Common Stock.
2.3 Contingent Payment. In addition, PBGC will have
__________________
the right to receive a contingent payment (the "Contingent
Payment") on the terms and conditions of the Contingent Payment
Agreement in the form attached hereto as Exhibit B.
3. Representations and Warranties of Kaiser. Kaiser
________________________________________
represents and warrants to PBGC:
(a) Organization and Authorization. Kaiser has been
______________________________
duly incorporated, is validly existing and in good standing under
the laws of the State of Delaware. The execution, delivery and
performance of this Agreement, the Warrant, the Contingent
Payment Agreement and the Registration Rights Agreement (as
hereafter defined) have been duly authorized by all
requisite action. No charter, bylaw, material agreement,
material document or material instrument of any kind of which
Kaiser is a party or by which it may be bound would be violated
by the Transaction. Kaiser has full power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement, the Warrant, the
Contingent Payment Agreement and the Registration Rights
Agreement constitute the valid and legally binding obligation of
Kaiser, enforceable in accordance with its terms and conditions,
subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting or relating to creditors' rights
generally. Kaiser need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the
transactions contemplated by this Agreement. The Transaction
does not contravene any applicable law, rule, or regulation or
any order or decree binding on Kaiser. A true and correct copy
of the resolutions of the Independent Committee of the Board of
Directors of Kaiser and those of the Board of Directors of Kaiser
approving the Transaction had previously been delivered to PBGC
and are attached to the opinion of counsel provided to PBGC.
Prior to adopting those resolutions, the Independent Committee
and the Board of Directors of Kaiser received an opinion from
Merrill Lynch as to the fairness of the Transaction to the
nonselling shareholders of Kaiser.
(b) Consents. Kaiser has obtained any necessary third
________
party consent or approval that may be required to be obtained by
it to complete the Transaction.
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(c) Brokers. Except for Merrill Lynch, whose fees
_______
shall be the sole obligation of Kaiser, Kaiser has not employed
any broker or finder in connection with the Transaction, and
shall hold PBGC harmless from any liability or loss as a result
of or in connection with any brokerage or finder's fee or other
commission of any person retained by Kaiser in connection with
the Transaction.
(d) No Material Adverse Changes. Since December 31,
___________________________
1998, there has not been any material adverse changes in the
business, financial condition, operations, results of operations,
or future prospects of Kaiser and no material transactions
involving Kaiser are pending including any material transactions
involving Mine Reclamation Corporation or Mill Site, except as
disclosed (a) to the public in press releases or filings with the
Securities and Exchange Commission or (b) to the representatives
of the PBGC in writing at the Board of Directors meeting at which
this Agreement was approved.
4. Representations and Warranties of PBGC. PBGC hereby
______________________________________
represents and warrants to Kaiser as follows:
(a) Organization and Authorization. PBGC is a
______________________________
corporation that has been duly formed, is validly existing and in
good standing under federal law. The execution, delivery and
performance of this Agreement and the Registration Rights
Agreement have been duly authorized by all requisite
action as necessary. No trust document, bylaw, material
agreement, material document, or material instrument of any kind
of which PBGC is party or by which it may be bound would be
violated by the Transaction. This Agreement and the Registration
Rights Agreement constitute the valid and legally binding
obligation of PBGC, enforceable in accordance with its terms and
conditions, subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to
creditors' rights generally. PBGC need not give any notice to,
make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement. The
Transaction does not contravene any applicable law, rule, or
regulation or any order or decree binding on PBGC.
(b) Consents. PBGC has obtained any necessary third
________
party consent or approval that may be required to be obtained by
it to complete the Transaction.
(c) Ownership. PBGC is the record and beneficial
_________
owner of 2,100,966 shares of the common stock of Kaiser,
including the PBGC Shares. PBGC has and Kaiser will receive
title to the PBGC Shares, free and clear of all security
interests, liens, claims, pledges, options, rights of first
refusal, agreements, charges or other encumbrances of any nature
whatsoever.
(d) Warrant Representations. The Warrant and the
_______________________
Shares for which it is being exercisable are being acquired for
investment for PBGC's own account, not as a nominee or agent, and
not with a view to the sale or distribution of all or any part
thereof in violation of applicable securities laws. PBGC has the
requisite knowledge and experience to assess the relative merits
and risks of an acquisition of the Warrant and such shares. PBGC
is an "accredited investor" as that term is defined by Rule
501(a) promulgated under the Securities Exchange Act of 1933, as
amended. The PBGC understands that each certificates for the
Warrant and such shares may be legended as a result of the
application of Securities and Exchange Commission Rule 144.
(e) Authority of Pacholder Associates, Inc. The PBGC
_______________________________________
has appointed Pacholder Associates, Inc. ("Pacholder") as the
PBGC's agent with respect to the matters contemplated by this
Agreement, with full authority to act on behalf of the PBGC.
(f) Brokers. Except with respect to its agreement
_______
with Pacholder, PBGC has not employed any broker or finder in
connection with the Transaction, and shall hold Kaiser harmless
from any liability or loss as a result of or in connection with
any brokerage or finder's fee or other commission of any person
retained by PBGC in connection with the Transaction.
5. Other Documents.
_______________
(a) Legal Opinion from PBGC's Counsel. Kaiser has
_________________________________
received a legal opinion from PBGC's legal counsel to the effect
that: (a) this Agreement and the Registration Rights Agreement
have been duly authorized by required legal action on the part of
PBGC; (b) the Transaction does not contravene any applicable law,
rule, or regulation or any order or decree binding on PBGC; and
(c) the completion of the Transaction on the part of PBGC does
not require the consent or authorization of any governmental
authority that has not been obtained.
(b) Legal Opinion from Kaiser's Counsel. PBGC has
___________________________________
received a legal opinion from Kaiser's legal counsel to the
effect that: (a) this Agreement, the Warrant, the Contingent
Payment Agreement and the Registration Rights Agreement have been
authorized by required legal action on the part of Kaiser; (b)
the Transaction does not contravene any applicable law, rule, or
regulation or any order or decree binding on Kaiser; and (c) the
completion of the Transaction on the part of Kaiser does not
require the consent or authorization of any governmental
authority that has not been obtained.
6. Limited Stock Lock-Up. PBGC agrees that, without the
_____________________
prior written consent of Kaiser, which consent Kaiser may grant
or deny in its sole and absolute discretion, PBGC will not offer,
sell, contract to sell, pledge or otherwise dispose of
("Transfer"), directly or indirectly, any shares of: (i) Kaiser
Common Stock or (ii) any securities convertible into or
exercisable or exchangeable for Kaiser Common Stock, nor will it
publicly disclose the intention to make any such Transfer, for a
period of 180 days after the dates thereof as specified in this
Agreement. Kaiser and its transfer agent and registrar are
hereby authorized by PBGC to decline to make any Transfer of
shares of Kaiser Common Stock if such Transfer would constitute a
violation or breach of this Agreement. A copy of this paragraph
shall be sufficient notice of these restrictions to Kaiser's
stock transfer agent and registrar. In addition, Kaiser and PBGC
are entering into the Registration Rights Agreement in the form
attached hereto as Exhibit C (the "Registration Rights
_________
Agreement").
7. Resignations. On execution hereof, PBGC has delivered
____________
to Kaiser an executed irrevocable resignation for the PBGC
affiliated individual currently serving on Kaiser's Board of
Directors.
8. Survival of Existing Indemnities. The existing rights
________________________________
to indemnification in favor of the present or former directors,
officers, employees and agents of Kaiser (from November 1, 1988,
forward only) and its subsidiaries shall survive the Transaction
and shall continue in full force and effect following the date
hereof. For at least four years after the date thereof, Kaiser
(i) shall use commercially reasonable efforts to maintain
policies of directors' and officers' liability insurance
providing coverage of no less than $15,000,000 with respect to
matters existing or occurring at or prior to the date thereof and
(ii) will include the former PBGC representative on the Board of
Directors of Kaiser as beneficiaries under any directors' and
officers' liability insurance policy which is obtained by
Kaiser.
9. Nature and Survival of Representations. Subject to
______________________________________
Paragraph 10, all representations, warranties and covenants made
by any party in this Agreement shall survive the closing
hereunder and the consummation of the Transaction, regardless of
any facts that come to the attention of the party.
10. Right of Indemnification. Each party (the
________________________
"Indemnifying Party") shall indemnify and hold the other party
(the "Indemnified Party") harmless from and against all costs and
expenses (including reasonable attorneys' fees), damages and
losses ("Losses") arising out of or resulting from a breach of
any representation, warranty or covenant made by the Indemnifying
Party in this Agreement. Except with respect to claims for
actual fraud, which may be made without regard to any limitation,
(i) each party shall be required to indemnify the other only to
the extent that the aggregate amount of Losses for which it must
provide indemnity exceeds $10,000 and (ii) the aggregate
recoveries from either party may each not exceed an aggregate of
the Purchase Price as a result of all Losses under this Agreement
or with respect to the Transaction. If any claim is asserted or
any action or proceeding is brought in respect of which indemnity
may be sought, the Indemnified Party will promptly notify the
Indemnifying Party in writing of such asserted claim or the
institution of such action or proceeding; provided, however, that
the Indemnified Party's failure to so notify the Indemnifying
Party will not relieve the Indemnifying Party from any liability
it might otherwise have on account of this indemnity, except to
the extent that the Indemnifying Party has been materially
prejudiced by such failure to notify. The Indemnifying Party
may, at its option, undertake full responsibility for the defense
of any third-party claim which, if successful, would result in an
obligation of indemnity under this Agreement. The Indemnifying
Party may contest or settle any such claim on such terms as the
Indemnifying Party may choose, provided that the Indemnifying
Party will not have the right, without the Indemnified Party's
prior written consent, to settle any such claim if such
settlement (i) arises from or is part of any criminal action,
suit or proceeding, (ii) contains a stipulation to, confession of
judgement with respect to, or admission or acknowledgement of,
any liability or wrongdoing on the part of the Indemnified Party,
(iii) relates to any tax matters, (iv) provides for injunctive
relief, or other relief or finding other than money damages,
which is binding on the Indemnified Party, or (v) does not
contain an unconditional release of the Indemnified Party. Such
defense will be conducted by reputable attorneys retained by the
Indemnifying Party at the Indemnifying Party's cost and expense,
but the Indemnified Party will have the right to participate in
such proceedings and to be separately represented by attorneys of
its own choosing. The Indemnified Party will be responsible for
the costs of such separate representation. The Indemnifying
Party and the Indemnified Party shall cooperate in determining
the validity of any third-party claim for any Loss for which a
claim of indemnification may be made hereunder. Each party shall
also use all reasonable efforts to minimize all Losses.
11. Miscellaneous Provisions.
________________________
(a) Specific Performance. The parties hereto agree
____________________
that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed by the applicable
party hereto in accordance with the specific terms of this
Agreement or were otherwise breached. Each of the parties hereto
shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement by the other and to enforce
specifically the terms and provisions hereof in addition to any
other remedy to which such party is entitled at law or in equity,
and each party waives the posting of any bond or security in
connection with any proceeding related thereto.
(b) Expenses. Except as may otherwise be provided
________
herein, no party hereto shall be responsible for the payment of
any other party's expenses incurred in connection with this
Agreement.
(c) Third Party Beneficiaries. Except as expressly
_________________________
provided in this Agreement, the terms and provisions of this
Agreement are intended solely for the benefit of each party
hereto and its respective successors and assigns, and it is not
the intention of the parties to confer third party beneficiary
rights upon any other person or entity.
(d) Further Assurances. At any time, and from time to
__________________
time, after the date thereof, each party will execute such
additional instruments and take such action as may be reasonably
requested by the other party to confirm or perfect title to PBGC
Shares or otherwise to carry out the intent and purposes of this
Agreement.
(e) Waiver. Any failure on the part of any party
______
hereto to comply with any of its obligations, agreements or
conditions hereunder may be waived in writing by the party to
whom such compliance is owed.
(f) Notices. All notices and other communications
_______
hereunder shall be in writing and shall be deemed to have been
given if delivered in person or sent by prepaid first class
registered or certified mail, return receipt requested to the
respective principal offices of the parties hereto to the
respective principal offices of the parties hereto as specified
below:
If to Kaiser: Kaiser Ventures Inc.
3633 E. Inland Empire Boulevard
Suite 850
Ontario, California 91764
Attention: President
<PAGE>
With a copy to:
Terry L. Cook, Esq.
Kaiser Ventures Inc.
3633 E. Inland Empire Blvd
Suite 850
Ontario, California 91764
Telephone: (909) 483-8500
Facsimile: (909) 944-6605
If to PBGC: Pension Benefit Guaranty
Corporation
c/o Pacholder Associates, Inc.,
as Agent
8044 Montgomery Road, Suite 480
Cincinnati, Ohio 45236
Attention: Thomas M. Barnhart, II
Senior Vice President
and Associate General
Counsel
Telephone: (513) 985-3200
Facsimile: (513) 985-3217
With a copy to:
Timothy E. Hoberg, Esq.
Taft, Stettinius & Hollister
1800 Firstar Tower
425 Walnut Street,
Cincinnati, Ohio 45202
Telephone: (513) 381-2838
Facsimile: (513) 381-0205
Any notice or communication mailed shall also be faxed to
the appropriate number specified above.
(g) Interpretation. In this Agreement the singular
______________
included the plural and the plural the singular; words importing
any gender include the other genders; references to statutes are
to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to;
references to "writing," include printing, typing, lithography
and other means of reproducing words in a tangible visible form;
the word "including," "includes" and "include" are deemed to be
followed by the words "but not limited to"; and references to
paragraphs (or subdivisions of paragraphs) recitals or exhibits
are to those of this Agreement unless otherwise indicated. The
language used in this Agreement will be deemed to be the language
chosen by the parties to this Agreement to express their mutual
intent, and no rule of strict construction shall be applied
against any party.
(h) Counterparts. This Agreement may be executed
____________
simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument.
(i) Governing Law. This Agreement shall be governed
_____________
by, and interpreted in accordance with, the laws of the State of
Delaware, without regard to the conflict of law principles
thereof. All actions and proceedings arising out of or relating
to this Agreement shall be heard and determined in any state or
Federal court sitting in Delaware. Each of the parties hereto
(i) consents to submit such party to the personal jurisdiction of
any Federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby; (ii)
agrees that such party will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from
any such court; (iii) agrees that such party will not bring any
action relating to this Agreement or the transactions
contemplated hereby in any court other than a Federal court
sitting in the State of Delaware or a Delaware state court; and
(iv) waives any right to trial by jury with respect to any claim
or proceeding related to or arising out of this Agreement or any
of the transactions contemplated hereby.
(j) Binding Effect. This Agreement shall be binding
______________
upon the parties hereto and inure to the benefit of the parties,
their respective successors and assigns.
(k) Entire Agreement. This Agreement and the exhibits
________________
to be attached hereto constitute the entire agreement of the
parties covering everything agreed upon or understood in the
Transaction. The parties are executing and carrying out this
Agreement in reliance solely on the representations, warranties
and covenants and agreements contained in this Agreement and in
the written documents contemplated by this Agreement. This
Agreement may not be amended or modified except by a written
document executed by Kaiser and PBGC.
(l) Enforcement Costs. In the event of any legal
_________________
proceeding to enforce any of the terms hereof, the prevailing
party shall be entitled to receive payment for its attorneys'
fees and all other costs required to enforce its rights
hereunder.
(m) Regulatory Filings. Each party shall be
__________________
reasonable for completing and filing any regulatory filings that
may be applicable to it, including, but not limited to, any
filings with the Securities and Exchange Commission.
(n) Good Faith. The parties agree to seek in good
__________
faith to seek to consummate the Transaction.
(o) Public Announcements. Neither party shall make
____________________
any public announcements concerning this Agreement or the
Transactions contemplated herein without prior written consent of
the other party except as required by law, regulation or court
order; provided however that in any case any party required to
make a public announcement shall notify the other, and shall
reasonably cooperate with that other party in making such
required disclosure.
(p) Severability. The validity, legality or
____________
enforceability of the remainder of this Agreement shall not be
affected even if one or more of the provisions of this Agreement
shall be held to be invalid, illegal or unenforceable in any
respect. To the extent permitted by applicable law, the parties
hereby waive any provision of law that would render any provision
hereof prohibited or unenforceable in any respect.
(q) Headings. The headings in this Agreement are
________
inserted only as a matter of convenience, and in no way define,
limit, or extend or interpret the scope of this Agreement or of
any particular paragraph.
IN WITNESS WHEREOF, the parties have executed this Agreement
to be effective as of the day and year first above written.
"PBGC" "Kaiser"
Pension Benefit Guaranty Kaiser Ventures Inc.
Corporation
By: Pacholder Associates,
Inc., as Agent
By:________________________ By:__________________________
Thomas M. Barnhart. II Richard E. Stoddard
Senior Vice President and President, Chief Executive
Associate General Counsel Officer & Chairman of the
Board
Exhibit Q
KAISER VENTURES INC.
STOCK PURCHASE WARRANT
THE WARRANTS EVIDENCED HEREBY AND THE SHARES OF STOCK ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED OR SOLD WITHOUT REGISTRATION UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE UNDER SUCH ACT OR THE RULES OR
REGULATIONS PROMULGATED THEREUNDER
Expiration Date: September 30, 2004
WARRANT TO PURCHASE
285,260
SHARES OF COMMON STOCK
AS DESCRIBED HEREIN
This certifies that, for value received, the Pension Benefit
Guaranty Corporation or its successors and assigns ("Holder"), is
entitled to purchase from Kaiser Ventures Inc., a Delaware
corporation (the "Company"), up to and including Two Hundred
Eighty-Five Thousand Two Hundred Sixty (285,260) fully paid and
nonassessable shares (the "Number of Shares") of the common
stock, $.03 per share, of the Company (the "Common Stock") on the
terms set forth herein. The exercise price (the "Purchase
Price") shall be $17.00 per share. The Number of Shares and the
Purchase Price may be adjusted from time to time as described in
this Warrant.
1. Exercise.
1.1 Time for Exercise. This Warrant may be exercised in
whole or in part at any time, and from time to time, during the
period commencing on the date hereof and expiring on September
30, 2004.
1.2 Manner of Exercise. This Warrant shall be exercised by
delivering it to the Company with the attached exercise form duly
completed and signed, specifying (i) the number of shares as to
which the Warrant is being exercised at that time (the "Exercise
Number"), and (ii) whether the Holder wishes the exercise to be
made by "purchase" or "exchange".
1.2.1 Purchase. If the Holder elects the purchase
option, the Holder shall deliver to the Company cash or a
certified check in an amount equal to the Exercise Number
multiplied by the Purchase Price within five (5) business days of
the exercise, and the Holder shall be entitled to receive the
full Exercise Number of shares of Common Stock.
1.2.2 Exchange. If the Holder elects the exchange
option, the Holder shall be entitled (without cash payment) to
receive that number of shares of Common Stock having an aggregate
Market Value on the date of exercise equal to the difference
between the Market Value of the Exercise Number of shares and the
aggregate Purchase Price thereof. For purposes of this Section
1.2.2, "Market Value" means on any given date means (i) the
average closing price of the Common Stock for the prior ten
trading days on which the stock actually traded on the principal
stock exchange on which the Common Stock is then traded or (ii)
if not so traded, the closing (or, if no closing price is
available, the average of the bid and asked prices) for such
period on the NASDAQ if such the Common Stock is listed on NASDAQ
or (iii) if not listed on any exchange or quoted on the NASDAQ,
the Company's board of directors shall provide Holder with a good
faith determination of value, and Holder may either accept such
determination or request a determination by a mutually acceptable
investment banking firm, whose fees will be paid by the Holder
unless the Market Price so determined exceeds 110% of that set by
the Board.
1.3 Effect of Exercise. Promptly (but in any case within
five business days) after any exercise, the Company shall deliver
to the Holder (i) duly executed certificates in the name or names
specified in the exercise notice representing the aggregate
number of shares issuable upon such exercise, and (ii) if this
Warrant is exercised only in part, a new Warrant of like tenor
representing the balance of the Number of Shares. Such
certificates shall be deemed to have been issued, and the person
receiving them shall be deemed to be a holder of record of such
shares, as of the close of business on the date the actions
required in Section 1.2 shall have been completed or, if on that
date the stock transfer books of the Company are closed, as of
the next business day.
2. Transfer of Warrants and Stock.
2.1 Transfer Restrictions. Neither this Warrant nor the
securities issuable upon its exercise may be sold, transferred or
pledged unless the Company shall have been supplied with
reasonably satisfactory evidence that such transfer is not in
violation of the Securities Act of 1933, as amended, and any
applicable state securities laws. The Company may place a legend
to that effect on this Warrant, any replacement Warrant and each
certificate representing shares issuable upon exercise of this
Warrant. Subject to the satisfaction of this condition only,
this Warrant shall be freely transferable by the Holder.
2.2 Manner of Transfer. Upon delivery of this Warrant to
the Company with the attached assignment form duly completed and
signed, the Company will promptly (but in any case within five
business days) execute and deliver to each transferee and, if
applicable, the Holder, Warrants of like tenor evidencing the
rights (i) of the transferee(s) to purchase the Number of
Shares specified for each in the assignment forms, and (ii) of
the Holder to purchase any untransferred portion, which in the
aggregate shall equal the Number of Shares of the original
Warrant. The Company may decline to proceed with any partial
transfer if any new Warrant would represent the right to
purchase fewer than one thousand shares of Common Stock (such
number to be adjusted as provided in Section 4). If this Warrant
is properly assigned in compliance with this Section 2, it may be
exercised by an assignee without having a new Warrant issued.
2.3 Loss, Destruction of Warrant Certificates. Upon
receipt of (i) evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of any Warrant and
(ii) except in the case of mutilation, an indemnity or security
reasonably satisfactory to the Company (the original Holder's or
any institutional Holder's indemnity agreed to be satisfactory),
the Company will promptly (but in any case within five business
days) execute and deliver a replacement Warrant of like tenor
representing the right to purchase the same Number of Shares.
3. Cost of Issuances. The Company shall pay all expenses,
transfer taxes and other charges payable in connection with the
preparation, issuance and delivery of stock certificates or
replacement Warrants, except for any transfer tax or other charge
imposed as a result of (i) any issuance of stock certificates in
any name other than the name of the Holder upon exercise of
the Warrant or (ii) any transfer of the Warrant. The Company
shall not be required to issue or deliver any stock certificate
or Warrant until it receives reasonably satisfactory evidence
that any such tax or other charge has been paid by the Holder.
4. Anti-Dilution Provisions. If any of the following events
occur at any time hereafter during the life of this Warrant, then
the Purchase Price and the Number of Shares immediately prior to
such event shall be changed as described in order to prevent
dilution:
4.1 Stock Splits and Reverse Splits. If at any time the
outstanding shares of Common Stock are subdivided into a greater
number of shares, then the Purchase Price will be reduced
proportionately and the Number of Shares will be increased
proportionately. Conversely, if at any time the outstanding
shares of Common Stock are consolidated into a smaller number of
shares, then the Purchase Price will be increased proportionately
and the Number of Shares will be reduced proportionately.
4.2 Dividends. In the event the Company declares a
dividend upon the Common Stock whether in cash, property or
securities (except for cash dividends not in excess of the per
share amount paid by the Company under that certain Contingent
Payment Agreement between the Company and the initial Holder
dated as of November 17, 1999), at the time of subsequent
exercise of this Warrant, the Company shall deliver both (i) the
Number of Shares for which exercise is made plus (ii) such
dividends as would have been previously distributed to the Holder
if such exercise had been made on the date hereof. If the
Company shall declare a dividend payable in cash on its Common
Stock and shall at substantially the same time offer to its
shareholders a right to purchase new Common Stock from the
proceeds of such dividend, or for an amount substantially equal
to the dividend, the amount of Common Stock so offered shall, for
the purpose of this Warrant, be deemed to have been issued as a
stock dividend.
4.3 Effect of Reorganization and Asset Sales. If any (i)
reorganization or reclassification of the Common Stock, (ii)
consolidation or merger of the Company with or into another
corporation, (iii) sale of all or substantially all of its
operating assets to another corporation, or (iv) sale of the
Company substantially as a going concern followed by a
liquidation of the Company (any such occurrence shall be an
"Event"), is effected in such a way that holders of Common Stock
are entitled to receive securities and/or assets as a result of
their Common Stock ownership, then upon exercise of this Warrant
the Holder will have the right to receive the shares of stock,
securities or assets which they would have received if such
rights had been fully exercised as of the record date for such
Event. The Company will not effect any Event unless prior to or
simultaneously with its consummation the successor corporation
resulting from the consolidation or merger (if other than the
Company), or the corporation purchasing the Company's assets,
assumes the performance of the Company's obligations under
this Warrant (as appropriately adjusted to reflect such
consolidation, merger or sale such that the Holder's rights under
this Warrant remain, as nearly aspracticable, unchanged) by a
binding written instrument.
4.4 Other Securities Adjustments. If as a result of this
Section 4, a Holder is entitled to receive any securities other
than Common Stock upon exercise of this Warrant, the number and
purchase price of such securities shall thereafter be adjusted
from time to time in the same manner as provided pursuant to this
Section 4 for Common Stock. To the extent that a Right
receivable on exercise of this Warrant has lapsed or been lost
prior to the date of exercise, on exercise the Company shall pay
in cash an amount equal to the Market Value of the Right which
lapsed or was lost, determined as of the time which such Right
lapsed or was lost. The allocation of purchase price between
various securities shall be made in writing by the Board of
Directors of the Company in good faith at the time of the event
by which the Holder become entitled to receive new securities,
and a copy sent to the Holder.
<PAGE>
4.5 Notices.
4.5.1 Notice of Adjustments. When any adjustment
is required to be made under this Section 4, the Company shall
promptly (i) determine such adjustments, (ii) prepare and retain
on file a statement describing in reasonable detail the method
used in arriving at the adjustment; and (iii) cause a copy of
such statement, together with any agreement required by Section
4.3, to be mailed to the Holder within 10 days after the date on
which the circumstances giving rise to such adjustment occurred.
4.5.2 Notice of Events. If at any time (i) the
Company declares any dividends on the Common Stock, (ii) any
Event is expected to occur, or (iii) there is a voluntary or
involuntary dissolution, liquidation or winding up of the
Company, then the Company shall give the Holder at least thirty
(30) but not more than ninety (90) days written notice of the
date on which the books of the Company will close or upon which a
record will be taken with regard to such occurrence. Such notice
will also specify the date as of which the holders of the Common
Stock will participate in the dividend or will be entitled to
exchange their shares for securities or other property. The
notice may state that the record date is subject to the
effectiveness of a registration statement under the Securities
Act or to a favorable vote or determination of shareholders or of
any governmental agency.
4.6 Computations and Adjustments. Upon each computation of
an adjustment under this Section 4, the Purchase Price shall be
computed to the next lowest cent and the Number of Shares shall
be calculated to the next highest whole share. However, the
fractional amount shall be used in calculating any future
adjustments. No fractional shares of Common Stock shall be
issued in connection with the exercise of this Warrant, but the
Company shall, in the case of the final exercise under this
Warrant, make a cash payment for any fractional shares based on
the closing price on the date of exercise of a share of Common
Stock on the principal exchange or system on which the Common
Stock is listed or traded (or, if not then listed or traded
thereon, the mean of the closing bid and asked prices on an
automated quotation system, or, if such quotations are not
available, such value (determined without discount for
illiquidity or minority status) as may be determined in good
faith by the Company's Board of Directors, which determination
shall be conclusively binding on the parties). Notwithstanding
any changes in the Purchase Price or the Number of Shares, this
Warrant, and any Warrants issued in replacement or upon transfer
thereof, may continue to state the initial Purchase Price and the
initial Number of Shares. Alternatively, the Company may elect
to issue a new Warrant or Warrants of like tenor for the
additional shares of Common Stock purchasable hereunder
or, upon surrender of the existing Warrant, to issue a
replacement Warrant evidencing the aggregate Number of Shares to
which the Holder is entitled after such adjustments.
4.7 Exercise Before Payment Date. In the event that this
Warrant is exercised after the record date for any event
requiring an adjustment, but prior to the actual event, the
Company may elect to defer issuing to the Holder any payment or
additional securities required by such adjustment until the
actual event occurs; provided, however, that the Company shall
deliver a "due bill" or other appropriate instrument to the
Holder transferable to the same extent as the Common Stock
issuable on exercise evidencing the Holder's right to receive
such additional payment or securities upon the occurrence of the
event requiring such adjustment.
5. Covenants. The Company agrees that:
5.1 Reservation of Stock. During the period in which this
Warrant may be exercised, the Company will reserve sufficient
authorized but unissued securities (and, if applicable, property)
to enable it to satisfy its obligations on exercise of this
Warrant. If at any time the Company's authorized securities
shall not be sufficient to allow the exercise of this Warrant,
the Company shall take such corporate action as may be necessary
to increase its authorized but unissued securities to be
sufficient for such purpose;
5.2 No Liens, etc. All securities that may be issued upon
exercise of this Warrant will, upon issuance, be validly issued,
fully paid, nonassessable and free from all taxes, liens and
charges with respect to the issue thereof, and shall be listed on
any exchanges or authorized for trading on any automated systems
on which that class of securities is listed or authorized for
trading;
5.3 Furnish Information. The Company will promptly deliver
to the Holder copies of all financial statements, reports, proxy
statements and other information which the Company shall have
sent to its shareholders generally; and
6. Status of Holder.
6.1 Not a Shareholder. Except as otherwise provided in
this Warrant, unless the Holder exercises this Warrant in
writing, the Holder shall not be entitled to any rights (i) as a
shareholder of the Company with respect to the shares as to which
the Warrant is exercisable including, without limitation, the
right to vote or receive dividends or other distributions, or
(ii) to receive any notice of any proceedings of the Company.
6.2 Limitation of Liability. Unless the Holder exercises
this Warrant in writing, the Holder's rights and privileges
hereunder shall not give rise to any liability for the Purchase
Price or as a shareholder of the Company, whether to the Company
or its creditors.
<PAGE>
7. General Provisions.
7.1 Complete Agreement; Modifications. This Warrant and
any documents referred to herein or executed contemporaneously
herewith constitute the parties' entire agreement with respect to
the subject matter hereof and supersede all agreements,
representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the
subject matter hereof. This Warrant may not be amended, altered
or modified except by a writing signed by the parties.
7.2 Additional Documents. Each party hereto agrees to
execute any and all further documents and writings and to perform
such other actions which may be or become necessary or expedient
to effectuate and carry out this Warrant.
7.3 Notices. All notices under this Warrant shall be in
writing and shall be delivered by personal service, facsimile or
certified mail (if certified mail is not available, then by first
class mail), postage prepaid, to such address as may be
designated from time to time by the relevant party, and which
shall initially be:
If to the Company: Kaiser Ventures Inc.
3633 E. Inland Empire Boulevard
Suite 850
Ontario, California 91764
Attention: President
With a copy to:
Terry L. Cook, Esq.
Kaiser Ventures Inc.
3633 E. Inland Empire Blvd
Suite 850
Ontario, California 91764
Telephone: (909) 483-8500
Facsimile: (909) 944-6605
If to PBGC: Pension Benefit Guaranty
Corporation
c/o Pacholder Associates, Inc.,
as Agent
8044 Montgomery Road, Suite 480
Cincinnati, Ohio 45236
Attention: Thomas M. Barnhart, II
Senior Vice President
and Associate General
Counsel
Telephone: (513) 985-3200381-2838
Facsimile: (513) 985-3217
<PAGE>
With a copy to:
Timothy E. Hoberg, Esq.
Taft, Stettinius & Hollister
1800 Firstar Tower
425 Walnut Street
Cincinnati, Ohio 45202
Telephone: (513) 381-2838
Facsimile: (513) 381-0205
Any notice sent by certified mail shall be deemed to have
been given three (3) days after the date on which it is mailed.
All other notices shall be deemed given when received. No
objection may be made to the manner of delivery of any notice
actually received in writing by an authorized agent of a party.
7.4 No Third-Party Benefits; Successors and Assigns. None
of the provisions of this Warrant shall be for the benefit of, or
enforceable by, any third-party beneficiary. Except as provided
herein to the contrary, this Warrant shall be binding upon and
inure to the benefit of the parties, their respective successors
and permitted assigns. The Holder may assign its rights and
obligations under this Warrant to any third party if done so in
compliance with the requirements of Section 2. The Company may
only assign its rights and obligations this Warrant in connection
with a merger, consolidation or sale of substantially all of its
operating assets to the extent expressly permitted by, and in
compliance with all the requirements of, Section 4.3.
7.5 Waivers Strictly Construed. With regard to any power,
remedy or right provided herein or otherwise available to any
party hereunder (i) no waiver or extension of time shall be
effective unless expressly contained in a writing signed by the
waiving party, and (ii) no alteration, modification or impairment
shall be implied by reason of any previous waiver, extension of
time, delay or omission in exercise, or other indulgence.
7.6 Severability. The validity, legality or enforceability
of the remainder of this Warrant shall not be affected even if
one or more of its provisions shall be held to be invalid,
illegal or unenforceable in any respect.
7.7 Attorneys' Fees. Should any litigation or arbitration
be commenced (including any proceedings in a bankruptcy court)
between the parties hereto or their representatives concerning
any provision of this Warrant or the rights and duties of any
person or entity hereunder, the party or parties prevailing in
such proceeding shall be entitled, in addition to such other
relief as may be granted, to the attorneys' fees and court costs
incurred by reason of such litigation or arbitration.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to
be duly executed effective as of November 22, 1999.
KAISER VENTURES, INC.
By:_____________________________
Richard Stoddard
Its President
Attest:
____________________________
Terry L. Cook
Its Secretary
<PAGE>
ASSIGNMENT FORM
(To Be Executed Upon Transfer of Warrant)
FOR VALUE RECEIVED, ______________________________ hereby
sells, assigns and transfers to the transferee named below [the
rights to purchase ___ of the Number of Shares under] this
Warrant, together with all rights, title and interest therein.
[The rights to purchase the remaining Number of Shares shall
remain the property of the undersigned.] [This includes a
transfer of the registration rights in the Warrant.]
[NAME OF HOLDER]
Dated: _______________ By:____________________________
Signature
Name:__________________________
(Please Print)
Title:_________________________
Address:_______________________
_______________________
_______________________
Employer Identification Number,
Social Security Number or other
identifying number:____________
TRANSFEREE:
Name:_________________________
(Please Print)
Address:______________________
______________________
______________________
Employer Identification Number,
Social Security Number or other
Identifying number:____________
<PAGE>
EXERCISE FORM
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby exercises the Warrant with regard to
_____________ shares of Common Stock and herewith [makes payment
of the purchase price in full] [or requests that the Company
exchange the Warrant as provided in Section 1.2.2 of the
Warrant]. The undersigned requests that the certificate(s) for
such shares [and the Warrant for the unexercised portion
of this Warrant] be issued [to the Holder] [in the name set forth
below].
[NAME OF HOLDER]
Dated: __________________ By:________________________________
Signature
Name:_________________________
(Please Print)
Title:________________________
Address:______________________
______________________
______________________
Employer Identification Number,
Social Security Number or other
identifying number:_______________
TRANSFEREE:
Name:_____________________________
(Please Print)
Address:__________________________
__________________________
__________________________
Employer Identification Number,
Social Security Number or other
identifying number:_______________
Exhibit R
CONTINGENT PAYMENT AGREEMENT
This CONTINGENT PAYMENT AGREEMENT ("Agreement") is made and
entered into this 22nd day of November, 1999, by and between
KAISER VENTURES INC., a Delaware corporation, ("Kaiser") and the
Pension Benefit Guaranty Corporation ("PBGC").
RECITALS
A. The parties hereto are the parties to that certain
Stock Purchase Agreement (the "Stock Purchase Agreement") dated
as of even date herewith pursuant to which PBGC is selling to
Kaiser certain shares of the $.03 par value common stock of
Kaiser, which PBGC received in connection with the Chapter 11
bankruptcy reorganization of Kaiser Steel Corporation. Certain
capitalized terms not otherwise defined in this Agreement will be
defined as set out in the Stock Purchase Agreement.
B. A portion of the consideration under the Stock Purchase
Agreement is a Contingent Payment to be made by Kaiser under
certain terms and conditions.
C. This Agreement is the Contingent Payment Agreement
contemplated by the Stock Purchase Agreement under which the
Contingent Payment will be made.
NOW, THEREFORE, for and in consideration of the mutual
promises and covenants contained herein, and for other good and
valuable consideration, the parties hereto agree as follows:
1. Contingent Payment.
(a) Contingency. In addition to the other
consideration provided for in the Stock Purchase Agreement, if
(i) Kaiser is engaged in active, ongoing discussions with a
specific purchaser or purchasers at the end of the first year
from the date hereof for the sale or other transfer in a single
transaction (or a series of related transactions to one or more
buyers) of at least 65% of the approximately 592 acres of Mill
Site real estate other than the NAPA lots and the Rancho
Cucamonga lots (which are excluded from this test, but not from
the calculation of the payment due hereunder), including the
assumption of all or substantially all known and unknown
environmental remediation and liabilities (including, without
limitation, environmental liabilities to third parties)
associated with all such real estate whether title is actually
transferred or not, (a "Bulk Real Estate Transaction"), and (ii)
Kaiser in fact executes a definitive agreement with such
purchaser or its affiliates (including but not limited to an
option or other conveyance) on or before December 31, 2000
relating to the Bulk Real Estate Transaction under active
negotiation at the end of the year and (iii) that Bulk Real
Estate Transaction in fact closes (regardless of whether before
or after December 31, 2000), then Kaiser will make an additional
cash payment to VEBA (the "VEBA Contingent Real Estate Payment").
The term "Mill Site" refers to the East Slag Pile and the Kaiser
Commerce Center real estate properties which are composed of the
parcels commonly referred to by Kaiser as the West End, West Slag
Pile and Valley Boulevard.
(b) Timing of Payment. Kaiser will make the PBGC
Contingent Real Estate Payment within 10 business days following
the closing and the receipt of funds from the Bulk Real Estate
Transaction.
(c) Calculation. The "PBGC Contingent Real Estate
Payment" shall mean 15.31% of the excess of the net after-tax
proceeds received by Kaiser from the Bulk Real Estate Transaction
(net of all commissions, closing costs, investment banking fees,
Mill Site environmental remediation liabilities not assumed by
the buyer, and income taxes at the rate of 28%) above $8,073,064
as reflected in the "Asset Valuation" contained in Exhibit I
hereto. The PBGC Contingent Real Estate Payment shall be
determined by utilizing the "Contingent Real Estate Payment"
model contained in Exhibit I and shall be calculated by modifying
those assumptions for the actual amounts in the Bulk Real Estate
Transaction. As an example, based upon the example assumptions
shown in Exhibit I, the PBGC Contingent Real Estate Payment
would be $1,843,711.
2. Miscellaneous Provisions.
(a) Expenses. Except as may otherwise be provided
herein, no party hereto shall be responsible for the payment of
any other party's expenses incurred in connection with this
Agreement.
(b) Third Party Beneficiaries. The terms and
provisions of this Agreement are intended solely for the benefit
of each party hereto and its respective successors and assigns,
and it is not the intention of the parties to confer third party
beneficiary rights upon any other person or entity.
(c) Further Assurances. At any time, and from time to
time, after the Closing Date, each party will execute such
additional instruments and take such action as may be reasonably
requested by the other party to confirm or perfect title to PBGC
Shares or otherwise to carry out the intent and purposes of this
Agreement.
(d) Waiver. Any failure on the part of any party
hereto to comply with any of its obligations, agreements or
conditions hereunder may be waived in writing by the party to
whom such compliance is owed.
(e) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
given if delivered in person or sent by prepaid first class
registered or certified mail, return receipt requested to the
respective principal offices of the parties hereto to the
respective principal offices of the parties hereto as specified
below:
If to Kaiser: Kaiser Ventures Inc.
3633 E. Inland Empire Boulevard
Suite 850
Ontario, California 91764
Attention: President
With a copy to:
Terry L. Cook, Esq.
Kaiser Ventures Inc.
3633 E. Inland Empire Blvd
Suite 850
Ontario, California 91764
Telephone: (909) 483-8500
Facsimile: (909) 944-6605
If to PBGC: Pension Benefit Guaranty
Corporation
c/o Pacholder Associates, Inc.,
as Agent
8044 Montgomery Road, Suite 480
Cincinnati, Ohio 45236
Attention: Thomas M. Barnhart, II
Senior Vice President
and Associate General
Counsel
Telephone: (513) 985-3200
Facsimile: (513) 985-3217
With a copy to:
Timothy E. Hoberg, Esq.
Taft, Stettinius & Hollister
1800 Firstar Tower
425 Walnut Streeet
Cincinnati, Ohio 45202
Telephone: (513) 381-2838
Facsimile: (513) 381-0205
Any notice or communication mailed shall also be faxed to
the appropriate number specified above.
(f) Interpretation. In this Agreement the singular
included the plural and the plural the singular; words importing
any gender include the other genders; references to statutes are
to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to;
references to "writing," include printing, typing, lithography
and other means of reproducing words in a tangible visible form;
the word "including," "includes" and "include" are deemed to be
followed by the words "but not limited to"; and references to
paragraphs (or subdivisions of paragraphs) recitals or exhibits
are to those of this Agreement unless otherwise indicated.
The language used in this Agreement will be deemed to be the
language chosen by the parties to this Agreement to express their
mutual intent, and no rule of strict construction shall be
applied against any party.
(g) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument.
(h) Governing Law. This Agreement shall be governed
by, and interpreted in accordance with, the laws of the State of
Delaware, without regard to the conflict of law principles
thereof. All actions and proceedings arising out of or relating
to this Agreement shall be heard and determined in any state or
Federal court sitting in Delaware. Each of the parties hereto
(i) consents to submit such party to the personal jurisdiction of
any Federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby; (ii)
agrees that such party will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from
any such court; (iii) agrees that such party will not bring any
action relating to this Agreement or the transactions
contemplated hereby in any court other than a Federal court
sitting in the State of Delaware or a Delaware state court; and
(iv) waives any right to trial by jury with respect to any claim
or proceeding related to or arising out of this Agreement or any
of the transactions contemplated hereby.
(i) Binding Effect. This Agreement shall be binding
upon the parties hereto and inure to the benefit of the parties,
their respective successors and assigns.
(j) Entire Agreement. This Agreement and the exhibits
to be attached hereto constitute the entire agreement of the
parties covering everything agreed upon or understood in the
Transaction. The parties are executing and carrying out this
Agreement in reliance solely on the representations, warranties
and covenants and agreements contained in this Agreement and in
the written documents contemplated by this Agreement. This
Agreement may not be amended or modified except by a written
document executed by Kaiser and PBGC.
(k) Enforcement Costs. In the event of any legal
proceeding to enforce any of the terms hereof, the prevailing
party shall be entitled to receive payment for its attorneys'
fees and all other costs required to enforce its rights
hereunder.
(l) Regulatory Filings. Each party shall be
reasonable for completing and filing any regulatory filings that
may be applicable to it, including, but not limited to, any
filings with the Securities and Exchange Commission.
(m) Good Faith. The parties agree to seek in good
faith to seek to consummate the Transaction.
(n) Severability. The validity, legality or
enforceability of the remainder of this Agreement shall not be
affected even if one or more of the provisions of this Agreement
shall be held to be invalid, illegal or unenforceable in any
respect. To the extent permitted by applicable law, the parties
hereby waive any provision of law that would render any provision
hereof prohibited or unenforceable in any respect.
(o) Headings. The headings in this Agreement are
inserted only as a matter of convenience, and in no way define,
limit, or extend or interpret the scope of this Agreement or of
any particular paragraph.
IN WITNESS WHEREOF, the parties have executed this Agreement
to be effective as of the day and year first above written.
"PBGC" "Kaiser"
Pension Benefit Guaranty Kaiser Ventures Inc.
Corporation
By: Pacholder Associates,
Inc., as Agent By:_____________________________
Richard E. Stoddard
By:________________________ President, Chief Executive
Thomas M. Barnhart. II Officer & Chairman of the
Senior Vice President Board
Exhibit S
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is
made as of November 22, 1999 between Kaiser Ventures Inc., a
Delaware corporation (the "Company") and New Kaiser Voluntary
Employees' Beneficiary Association, a tax exempt trust formed
pursuant to Section 501(a) and 501(c)(9) of the Internal
Revenue Code of 1986, as amended ("VEBA") and the Pension Benefit
Guaranty Corporation ("PBGC").
WHEREAS, the Company, and VEBA, and the Company and PBGC,
are each parties to two separate Stock Purchase Agreements dated
as of even date herewith pursuant to which the Company is
purchasing certain shares of its stock from VEBA and from PBGC
(the "Stock Purchase Agreements"). However, VEBA will be
receiving a warrant to purchase up to 460,000 shares of the
common stock (the "Common Stock") of the Company and PBGC will be
receiving a warrant to purchase up to 285,260 shares of Common
Stock (collectively, the "Warrants") pursuant to the Stock
Purchase Agreements.
WHEREAS, pursuant to the Stock Purchase Agreements, the
parties agreed to enter into this Agreement, pursuant to which
the Company will grant to VEBA and PBGC (the "Sellers") certain
registration rights with respect to the Shares and the Warrant.
Unless otherwise provided in this Agreement, capitalized terms
used in this Agreement will have the meanings set forth in
paragraph 8 hereof.
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Company
and the Sellers agree as follows:
1. Demand Registration.
(a) Notice of Demand. At any one time after September
30, 2001, the Sellers may be written notice request (a "Demand
Registration") that the Company register Registrable Securities
under the Securities Act of 1933, as amended (the "Securities
Act") so long as the registration may be accomplished through the
use of a Form S-3 or comparable form. The notice shall set forth
(i) the number of shares to be included; (ii) the names of
the Sellers and the amounts to be sold by each; and (iii) the
proposed manner of sale.
(b) Registration. Promptly after receipt of the
notice pursuant to Section 1(a), the Company shall prepare and
file with the Securities and Exchange Commission a registration
statement with respect to the Registrable Securities specified in
such notice, and use its best efforts to cause such registration
statement to become effective.
(c) Holdback. In the event that a registration is
demanded pursuant to this Section 1, and in the reasonable
judgment of the Company it cannot be undertaken without serious
injury to the Company (the grounds for which decision shall be
confidentially disclosed to any requesting Holder), the Company
shall have the option to require the Selling Holders to withdraw
such registration demand for a period of up to 180 days (which
may be extended if such facts continue to be in effect).
2. Piggyback Registration Rights.
(a) Right To Piggyback. If the Company proposes to
register any of its common stock under the Securities Act and the
registration form to be used may be used for the registration of
Registrable Securities (as defined below) ("Piggyback
Registration") (Piggyback Registrations and Demand Registrations
are "Registrations"), the Company will give written notice to
the Sellers of its intention to effect such a registration and
will include in such registration all Registrable Securities with
respect to which the Company has received a written request from
either Seller for inclusion therein within 15 days after the
receipt of the Company's notice, subject to subparagraph 2(c)
below.
(c) Priority on Registrations. If the managing
underwriters of the Piggyback Registration determined in their
sole but good faith discretion and advise the Company in writing
that in their reasonable opinion the number of securities
requested to be included in such registration exceeds the
number which can be sold in such offering without adversely
affecting the marketability of the offering, the Company will
include in such registration (i) first, the securities the
Company proposes to sell, (ii) second, the Registrable Securities
requested by the Sellers to be included in such registration (in
proportion to their overall holdings of Common Stock) and
(iii) third, other securities requested to be included in such
registration.
3. Procedures.
(a) Piggyback Expenses. The Registration Expenses (as
defined below) of the Sellers will be paid by the Company in a
Registration.
(b) Remedies. Neither Seller will not seek an
injunction restraining or otherwise delaying any Registration as
the result of any controversy that might arise with respect to
the interpretation or implementation of this Agreement.
(c) Availability of Documents. The Company shall
furnish to the Sellers such number of copies of prospectuses,
including preliminary prospectuses, reasonably necessary to
conform with the requirements of the Securities Act, and such
other documents as the Sellers may reasonably request, to
facilitate the disposition of the Registrable Securities being
sold by the Sellers upon exercise of the Registration rights
contained in this Agreement.
(d) Blue Sky Compliance. The Company shall use its
reasonable efforts to register and qualify securities covered by
the Registration rights contained in this Agreement under such
other securities or Blue Sky laws of such jurisdictions as shall
be reasonably appropriate for the distribution of the securities
covered by the Registration; provided, however, that the Company
will not be required to qualify as a foreign corporation or to
take any action which would subject it to the service of process
in such state or jurisdiction, other than as to matters and
transactions relating to the offer and sale of the offered
securities, in any jurisdiction where it is not now
so subject.
4. Holdback Agreements. Each Seller agrees not to effect
any sale, transfer or other distribution (including sales
pursuant to Rule 144 or Rule 144A) of equity securities of the
Company, or any securities convertible into or exchangeable or
exercisable for such securities, for the period commencing seven
days prior to and ending on the first to occur of the (i) six
months from the effective date of any Registration in which
Registrable Securities are included (except as part of such
underwritten registration) or (ii) the Date on which any similar
lock-up imposed upon the Company in such Registration terminates,
unless the underwriters managing the registered public offering
otherwise agree.
5. Conditions Of Obligation To Register Shares. The
obligations of the Company under this Agreement are subject to
the following conditions:
(a) If a Piggyback Registration is underwritten, the
Company will not be required to include any Registrable
Securities in a Piggyback Registration unless the Seller involved
accepts, in writing, the terms of the underwriting as agreed upon
between the Company and the underwriters selected by the Company.
If either Seller does not accept the terms of the underwriting as
agreed upon between the Company and the underwriter, that
Seller shall withdraw.
(b) Each Seller will cooperate with the Company in
connection with the preparation of the registration statement,
and for so long as the Company is obligated to file and keep
effective the registration statement, will provide to the
Company, in writing, for use in the registration statement, all
information regarding that Seller as may be necessary to
enable the Company to prepare the registration statement and
prospectus covering the Registrable Securities, to maintain the
currency and effectiveness thereof and otherwise to comply with
all applicable requirements of law in connection therewith.
(c) During such time as a Seller may be engaged in a
distribution of Registrable Securities, such Seller will comply
with Rules 10b-7 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and pursuant thereto, the
Seller will, among other things, cause to be furnished to each
broker through whom Registrable Securities may be offered, or to
the offeree if an offer is not made through a broker, such
copies of the prospectus covering the Registrable Securities and
any amendment or supplement thereto and documents incorporated by
reference therein as may be required by law and the Seller shall
not bid for or purchase any shares of the Company or attempt to
induce any other person to purchase any securities of the Company
other than as permitted under Exchange Act.
6. Certain Limitation on Future Rights. From and after
the date of this Agreement, the Company shall not enter into any
agreement with any other holder or prospective holder of any
securities of the Company providing for the grant to any such
prospective holder of registration rights unless such agreement
includes the substantial equivalent of (a) Section 2(c) of this
Agreement as a term of such agreement and in such section, the
agreement provides that the Sellers will have a priority with
respect to Piggyback Registration superior to any other holder of
securities of the Company, excluding, in all cases, the Company,
and (b) Section 3 of this Agreement as a term of such agreement.
7. Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Agreement,
including without limitation all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws,
printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent
certified public accountants, underwriters (if any) (excluding
discounts and commissions) and other Persons retained by the
Company (all such expenses being herein called "Registration
Expenses"), will be borne as provided in this Agreement.
8. Indemnification.
(a) The Company agrees to indemnify, to the extent
permitted by law, the Sellers, their trustees, officers,
directors, counsel and each Person who controls the Sellers
(within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any
information furnished in writing to the Company by the
Sellers for use therein or by the Seller's failure to deliver a
copy of the registration statement or prospectus or any
amendments or supplements thereto after the Company has furnished
the Sellers with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and
each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with
respect to the indemnification of the Sellers.
(b) In connection with any registration statement in
which the Sellers are participating, the Sellers will furnish to
the Company in writing such information, affidavits instruments
and other documents as the Company reasonably requests for use in
connection with any such registration statement or prospectus
and, to the extent permitted by law, indemnify the Company, its
directors, officers, counsel, accountants and each Person who
controls the Company (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or
affidavit so furnished in writing by the Sellers.
(c) Any Person entitled to indemnification hereunder
will (i) give prompt written notice to the indemnifying party of
any claim with respect to which it seeks indemnification and (ii)
unless in such indemnified party's reasonable judgment a conflict
of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party
to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably
withheld, conditioned or delayed). An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than
one counsel for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
(d) The indemnification provided for under this
Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or
any officer, director or controlling Person of such indemnified
party and will survive the transfer of securities.
9. Participation in Underwritten Registrations. No Seller
may not participate in any registration hereunder which is
underwritten unless it (a) agrees to sell its securities on the
basis provided in any underwriting arrangements approved by the
Person or Persons entitled hereunder to approve such arrangements
and (b) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting
arrangements.
10. Definitions.
"Person" means any individual, corporation, partnership,
limited liability company, limited liability partnership, firm,
joint venture, association, joint-stock company, trust or
unincorporated organization
"Registrable Securities" means (i) any Common Stock issued
or issuable with respect to the Warrants (the "Warrant Shares")
and (ii) any Common Stock issued or issuable with respect to the
Warrant Shares by way of a stock dividend, stock split or in
connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to
be Registrable Securities when they have been distributed to the
public or may be immediately sold to the public through a broker,
dealer or market maker in compliance with Rule 144 or Rule 144A
under the Securities Act (or any similar rule then in force).
11. Termination. This Agreement shall automatically
terminate and be of no further force or effect upon the first to
occur of (i) that Seller's failure to participate in two
underwritten public offerings in which Piggyback Registration
rights were offered to it and there was no material restriction
on the number of Registrable Securities proposed to be registered
on behalf of the Company, or (ii) the seventh anniversary date of
this Agreement. The termination of this Agreement does not
eliminate any liability of the parties for prior breaches.
12. Miscellaneous.
(a) Amendments and Waivers. Except as otherwise
provided herein, the provisions of this Agreement may be amended
or waived only upon the prior written consent of the Company and
the Sellers. In any instance where a single decision by Sellers
is reasonably necessary, Sellers shall act by majority based on
the Registrable Securities then held or covered by
Warrant.
(b) Successors and Assigns. This Agreement and the
respective rights and obligations hereunder shall not be assigned
by either party except with the prior written consent of the
non-assigning party, which consent shall be subject to the sole
discretion of the non-assigning party.
(c) Severability. Whenever possible, each provision
of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating
the remainder of this Agreement.
(d) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need
not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same
Agreement.
(e) Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
(f) Governing Law. All other questions concerning the
construction, validity and interpretation of this Agreement and
the exhibits and schedules hereto will be governed by the
internal law, and not the law of conflicts, of Delaware.
(g) Notices. All notices, demands or other
communications to be given or delivered under or by reason of the
provisions of this Agreement shall be in writing and shall be
deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified
or registered mail, return receipt requested and postage prepaid.
Such notices, demand and other communications will be sent to the
addresses indicated below:
To: The New Kaiser Voluntary Employees' Beneficiary
Association
9810 Sierra Avenue, Suite A
Fontana, CA 92335
Telephone: (909) 356-3663
Facsimile: (909)356-4672
To:
Pension Benefit Guaranty Corporation
c/o Pacholder Associates, Inc., as Agent
8044 Montgomery Road, Suite 480
Cincinnati, Ohio 45236
Attention: Thomas M. Barnhart, II
Senior Vice President and
Associate General Counsel
Telephone: (513) 381-2838
Facsimile: (513) 985-3217
With a copy to:
Timothy E. Hoberg, Esq.
Taft, Stettinius & Hollister
1800 Firstar Tower
425 Walnut Street
Cincinnati, Ohio 45202
Telephone: (513) 381-2838
Facsimile: (513) 381-0205
To:
Kaiser Ventures Inc.
3633 E. Inland Empire Boulevard
Suite 850
Ontario, California 91764
Attention: President
With a copy to:
Terry L. Cook, Esq.
c/o Kaiser Ventures Inc.
3633 E. Inland Empire Boulevard
Suite 850
Ontario, California 91764
Telephone: (909) 356-3663
Facsimile: (909) 356-4672
or to such other address or to the attention of such other person
as the recipient party has specified by prior written notice to
the sending party.
[Next page is signature page]
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
"VEBA" "Kaiser"
New Kaiser Voluntary Employees' Kaiser Ventures Inc.
Beneficiary Association
By: By:
Ronald E. Bitonti Richard E. Stoddard
Chairman, Administrative President, Chief
Committee Executive Officer
& Chairman of the Board
By: Wells Fargo Bank of California, as trustee
By: __________________________
Mario Gonzalez
Assistant Vice President
Institutional Trust Group
<PAGE>
By: ______________________________
Susanna Ryan
Vice President and Area Manager
Los Angeles Office
Institutional Trust Group
"PBGC"
Pension Benefit Guaranty Corporation
By: Pacholder Associates, Inc., as Agent
By:
Thomas M. Barnhart. II
Senior Vice President and
Associate General Counsel
