UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): December 31, 2008
KAISER ALUMINUM CORPORATION
(Exact Name of Registrant as Specified in its Charter)
         
Delaware
(State or Other Jurisdiction
of Incorporation)
  0-52105
(Commission
File Number)
  94-3030279
(I.R.S. Employer
Identification No.)
     
27422 Portola Parkway, Suite 350
Foothill Ranch, California

(Address of Principal Executive Offices)
  92610-2831
(Zip Code)
(949) 614-1740
(Registrant’s telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o     Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o     Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o     Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o     Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 


 

Item 5.02.   Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
     Effective as of December 31, 2008, the following compensatory arrangements previously entered into or adopted by Kaiser Aluminum Corporation (the “Company”) or one of its subsidiaries were amended:
  (1)   Employment Agreement, dated as of July 6, 2006 (the “Hockema Employment Agreement”), with Jack A. Hockema, the Company’s principal executive officer;
 
  (2)   Change in Control Severance Agreements (the “Change in Control Severance Agreements”) with John Barneson, John M. Donnan, and Daniel J. Rinkenberger, each of whom was a “named executive officer” in the proxy statement relating to the Company’s 2008 annual meeting of stockholders;
 
  (3)   agreements evidencing awards granted to Messrs. Hockema, Barneson, Donnan and Rinkenberger prior to 2008 under the Company’s 2006 Equity and Performance Incentive Plan (the “Pre-2008 Equity Awards”); and
 
  (4)   the Kaiser Aluminum Fabricated Products Restoration Plan.
The amendments consist of various technical and clarifying changes intended to bring such arrangements into compliance with Section 409A of Internal Revenue Code of 1986, as amended (the “Code”), and to ensure that such arrangements meet the requirements for avoiding accelerated taxes and penalties under Section 409A of the Code.
     The amendment to the Hockema Employment Agreement, a form of amendment to the Change in Control Severance Agreements, the amendment to the agreements evidencing the Pre-2008 Equity Awards and the amendment to the Restoration Plan are attached hereto as Exhibits 10.1, 10.2, 10.3 and 10.4, respectively, and are incorporated herein by reference.

 


 

Item 9.01.   Financial Statements and Exhibits.
(d) Exhibits:
     
Exhibit    
Number   Description
10.1
  Amendment dated December 31, 2008 to the Employment Agreement between Jack A. Hockema and the Company.
 
   
10.2
  Form of Amendment to the Change in Control Severance Agreement with John Barneson, John M. Donnan, and Daniel J. Rinkenberger.
 
   
10.3
  Amendment dated December 31, 2008 to the agreements evidencing awards granted to Messrs. Jack A. Hockema, John Barneson, John M. Donnan and Daniel J. Rinkenberger prior to 2008 under the Company’s 2006 Equity and Performance Incentive Plan.
 
   
10.4
  Amendment to the Kaiser Aluminum Fabricated Products Restoration Plan.

 


 

SIGNATURES
     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
  KAISER ALUMINUM CORPORATION
(Registrant)
 
 
  By:   /s/ John M. Donnan    
    John M. Donnan   
    Senior Vice President, General Counsel and Secretary   
 
Date: December 31, 2008

 


 

EXHIBIT INDEX
     
Exhibit No.   Description
10.1
  Amendment dated December 31, 2008 to the Employment Agreement between Jack A. Hockema and the Company.
 
   
10.2
  Form of Amendment to the Change in Control Severance Agreement with John Barneson, John M. Donnan, and Daniel J. Rinkenberger.
 
   
10.3
  Amendment dated December 31, 2008 to the agreements evidencing awards granted to Messrs. Jack A. Hockema, John Barneson, John M. Donnan and Daniel J. Rinkenberger prior to 2008 under the Company’s 2006 Equity and Performance Incentive Plan.
 
   
10.4
  Amendment to the Kaiser Aluminum Fabricated Products Restoration Plan.

 

Exhibit 10.1
AMENDMENT TO
EMPLOYMENT AGREEMENT
     THIS AMENDMENT is entered into as of December 31, 2008, by and between Kaiser Aluminum Corporation, a Delaware corporation (the “Company”), and Jack A. Hockema (the “Executive”). Terms not defined in this Amendment shall have the meaning set forth in the Agreement (as defined below).
     WHEREAS, the Company and the Executive entered into that certain Employment Agreement dated as of July 6, 2006 (the “Agreement”) and wish to amend the Agreement to assure that (i) any payments under the Agreement that constitute a deferral of compensation within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), comply with the requirements of Section 409A to avoid the imposition of excise taxes, and (ii) any payments under the Agreement that qualify for an exemption from deferred compensation treatment under Section 409A satisfy the requirements of such exemption.
     NOW, THEREFORE, the parties agree as follows:
     1. Section 4.1 of the Agreement is amended to provide that the payments described in Sections 4.1(i) and (iii) will be paid in the 30-day period following the date of the Executive’s termination of employment.
     2. The first sentence of the second paragraph of Section 4.5 of the Agreement is amended in its entirety to read as follows:
For purposes of this Agreement, “Good Reason” shall mean, without the Executive’s consent, the occurrence of any of the following during the Term: (A) any material reduction in the Executive’s Base Salary, target bonus opportunity or benefits pursuant to Section 3 of this Agreement; (B) a material change in the Executive’s position causing it to be of materially less stature or responsibility, or a change in the Executive’s duties, authorities, responsibilities or reporting relationship; (C) the Company materially breaches this Agreement; or (D) the Executive is not nominated for election to the Board or the Executive is not timely renominated for election to the Board or is involuntarily removed from the Board under circumstances that would not constitute Cause or Disability hereunder; provided, however, that the Executive must provide written notice to the Company of the existence of the Good Reason no later than 90 days after its initial existence and the Company shall have a period of 30 days following receipt of such written notice during which it may remedy in all materials respects the Good Reason condition identified in such written notice; and provided further that the Executive must terminate employment with the Company no less than two years following the initial existence of the Good Reason condition identified in such written notice.
     3. Any expense reimbursements required to be made under the Agreement shall be for expenses incurred by the Executive during his lifetime and shall be made not later than December 31 st of the year following the year in which the Executive incurs the expense; provided that in no event shall the amount of expenses eligible for payment or reimbursement, or in-kind benefits provided, by the Company in one calendar year affect the amount of expenses to

 


 

be paid or reimbursed, or in-kind benefits to be provided, in any other calendar year. The Executive’s right to expense reimbursement shall not be subject to liquidation or exchange for another benefit. Any payment that becomes due to the Executive under Section 4.6.3 of the Agreement shall be paid to the Executive no later than December 31 of the calendar year following the calendar year in which the Excise Tax is paid.
     4. For the avoidance of doubt, to the extent that any provision of the Agreement provides for the continued exercise of Options following the Executive’s termination of employment, such Options shall be exercisable for the period provided in the Agreement, but in no event beyond the end of the original term of such Options.
     5. To the extent that the Agreement provides for the payment of “deferred compensation” (within the meaning of Section 409A) to the Executive or the Executive’s beneficiaries upon or as a result of the Executive’s termination of employment, the Executive shall be considered to have experienced a termination of employment as of the date that the Executive incurs a “separation from service” within the meaning of Section 409A.
     6. Each payment or benefit to which the Executive becomes entitled under the Agreement will be considered, and is hereby designated as, a separate payment for purposes of Section 409A (and consequently the Executive’s entitlement to such payment or benefit will not be considered an entitlement to a single payment of the aggregate amount to be paid).
     7. If the Company makes a good faith determination that a payment under the Agreement (i) constitutes a deferral of compensation for purposes of Section 409A, (ii) is made to the Executive by reason of his separation from service, (iii) at the time such payment would otherwise be made, the Executive is a “specified employee” within the meaning of Section 409A (and using the identification methodology specified by the Company from time to time), and (iv) a delay in payment is required in order to avoid the imposition of excise taxes under Section 409A and such delay is not already provided for by the Agreement, then the payment shall be delayed until the earlier of (A) the first business day following the six-month anniversary of the Executive’s separation from service, or (B) the Executive’s death.
     8. The provisions of this Amendment supersede and replace in their entirety any conflicting provision set forth in the Agreement. Except as specifically amended hereby, the Agreement will continue in full force and effect.
     IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
         
  KAISER ALUMINUM CORPORATION
 
 
  By   /s/ John M. Donnan    
    Name:   John M. Donnan   
    Title:   Senior Vice President, Secretary and
General Counsel 
 

2


 

         
  EXECUTIVE
 
 
    /s/ Jack A. Hockema    
    Jack A. Hockema   
     

3

         
Exhibit 10.2
AMENDMENT TO
CHANGE IN CONTROL SEVERANCE AGREEMENT
     THIS AMENDMENT is entered into as of December 31st, 2008, by and between Kaiser Aluminum Fabricated Products, LLC, a Delaware limited liability company (the “Company”), and the executive identified on the signature page to this Amendment (the “Executive”). Terms not defined in this Amendment shall have the meaning set forth in the Agreement (as defined below).
     WHEREAS, Kaiser Aluminum & Chemical Corporation, a Delaware corporation (“KACC”), and the Executive entered into that certain Change in Control Severance Agreement effective November 18, 2002 (the “Agreement”), and on July 6, 2006, KACC assigned to the Company, and the Company assumed from KACC, KACC’s rights and obligations under the Agreement; and
     WHEREAS, the Company and the Executive wish to amend the Agreement to assure that (i) any payments under the Agreement that constitute a deferral of compensation within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), comply with the requirements of Section 409A to avoid the imposition of excise taxes, and (ii) any payments under the Agreement that qualify for an exemption from deferred compensation treatment under Section 409A satisfy the requirements of such exemption.
     NOW, THEREFORE, the parties agree as follows:
     1. All references to the “Corporation” contained in the Agreement shall be deemed references to the Company.
     2. The first paragraph of Section 2(g) of the Agreement is amended to replace the “ten (10) business day” period described therein with “thirty (30) business days” and Section 2(g)(3) of the Agreement is amended to replace the reference to “a reduction” in the Executive’s eligibility for participation in the Company’s benefit plans contained therein with “a material reduction.”
     3. Section 3(d) of the Agreement is amended in its entirety to read as follows:
  (d)   The Executive declines to sign and return a Release Agreement or revokes such Release Agreement within the time provided therein or for any other reason the Release Agreement has not been executed by the Executive, delivered to the Corporation and become effective and irrevocable in its entirety within the 60-day period following the Executive’s termination of employment; or
     4. Section 3 of the Agreement is further amended to add the following two sentences to the end thereof:
Notwithstanding anything to the contrary in this Agreement, in order to terminate employment with “Good Reason,” the Executive must terminate employment within the two-year period beginning upon the initial existence of the condition constituting Good Reason. If the Executive’s termination of employment precedes the Change in Control,

 


 

then, for purposes of determining the timing of any payments to be made under Section 5 or 6 below, such payments shall be measured from the date of the Change in Control rather than from the date of the Executive’s termination of employment.
     5. Sections 5(a) and 5(b) of the Agreement are amended to replace the phrase “as soon as practicable following the Executive’s termination (but in no event later than 30 days after such termination)” with the phrase “within five business days following the date that the Release Agreement becomes effective and irrevocable in accordance with its terms.”
     6. The second sentence of Section 6(b) of the Agreement is deleted in its entirety.
     7. The first paragraph of Section 7 of the Agreement is amended to replace the phrase “in such manner as the Executive shall direct” contained in the third sentence thereof with the phrase “by reducing any cash lump sum payments under Section 5(a) above.”
     8. Any expense reimbursements required to be made under the Agreement shall be for covered expenses incurred by the Executive during his or her lifetime, and such reimbursements shall be made not later than December 31 st of the year following the year in which the Executive incurs the expense; provided that in no event shall the amount of expenses eligible for payment or reimbursement, or in-kind benefits provided, by the Company in one calendar year affect the amount of expenses to be paid or reimbursed, or in-kind benefits to be provided, in any other calendar year. The Executive’s right to expense reimbursement shall not be subject to liquidation or exchange for another benefit. Any payment that becomes due to the Executive under Section 7 of the Agreement shall be paid to the Executive no later than December 31 of the calendar year following the calendar year in which the Excise Tax is remitted or, in the case of reimbursement of expenses incurred due to a tax audit or litigation to which there is no remittance of taxes, no later than the end of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation in accordance with Treasury Regulation Section 1.409A-3(i)(1)(v).
     9. To the extent that the Agreement provides for the payment of “deferred compensation” (within the meaning of Section 409A) to the Executive or the Executive’s beneficiaries upon or as a result of the Executive’s termination of employment, the Executive shall be considered to have experienced a termination of employment as of the date that the Executive incurs a “separation from service” within the meaning of Section 409A.
     10. Each payment or benefit to which the Executive becomes entitled under the Agreement will be considered, and is hereby designated as, a separate payment for purposes of Section 409A (and consequently the Executive’s entitlement to such payment or benefit will not be considered an entitlement to a single payment of the aggregate amount to be paid).
     11. If the Company makes a good faith determination that a payment under the Agreement (i) constitutes a deferral of compensation for purposes of Section 409A, (ii) is made to the Executive by reason of his or her separation from service, (iii) at the time such payment would otherwise be made, the Executive is a “specified employee” within the meaning of Section 409A (and using the identification methodology specified by the Company from time to time), and (iv) a delay in payment is required in order to avoid the imposition of excise taxes

2


 

under Section 409A and such delay is not already provided for by the Agreement, then the payment shall be delayed until the earlier of (A) the first business day following the six-month anniversary of the Executive’s separation from service, or (B) the Executive’s death.
     12. The provisions of this Amendment supersede and replace in their entirety any conflicting provision set forth in the Agreement. Except as specifically amended hereby, the Agreement will continue in full force and effect.
     IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
         
  KAISER ALUMINUM FABRICATED PRODUCTS, LLC
 
 
  By      
    Name:      
    Title:      
 
  EXECUTIVE
 
 
     
  Name:      
     

3

         
Exhibit 10.3
KAISER ALUMINUM CORPORATION
Amendment
to
Awards Granted Prior to 2008
under the
2006 Equity and
Performance Incentive Plan
December 31, 2008
     WHEREAS, the terms of each Award granted under the 2006 Equity and Performance Incentive Plan (as amended and restated, the “Plan”) of Kaiser Aluminum Corporation (the “Company”) prior to 2008 (other than Awards granted to non-employee directors) and remaining in effect on the date hereof (collectively, the “Applicable Awards”) provide the Company with the unqualified right to set off certain amounts payable to the Company as a result of any Detrimental Activity by the applicable Participant against any amounts that may be owing from time to time by the Company to such Participant; and
     WHEREAS, the Company desires to amend the Applicable Awards to qualify such right of set off so that the Applicable Awards comply with Section 409A of the Code and are consistent with the requirements for avoiding accelerated taxes and penalties under Section 409A of the Code; and
     WHEREAS, under Section 19(g) of the Plan, the Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”) may so amend the terms of any Award granted under the Plan without the consent of the applicable Participant so long as such amendment does not impair the rights of such Participant; and
     WHEREAS, the amendment of the Applicable Awards contemplated hereby does not impair the rights of any Participant; and
     WHEREAS, the Compensation Committee has approved the amendment of the Applicable Awards contemplated hereby.
     NOW, THEREFORE, the Evidence of Award for each of the Applicable Awards is hereby amended to add the following sentence to the end of the section thereof captioned “Detrimental Activity”:
“Notwithstanding anything to the contrary in this Agreement, except to the extent permitted by Treasury Regulation Section 1.409A-3(j)(4), the Company may not set off amounts payable to it against any amounts that may be owing from time to time by the Company or a Subsidiary to the Participant that are “deferred compensation” within the meaning of Section 409A of the Code.”

 


 

Except as specifically amended hereby, the Evidence of Award for each of the Applicable Awards shall continue in full force and effect. All capitalized terms used herein shall have the meanings ascribed to them in the Plan unless specifically set forth otherwise herein.
     IN WITNESS WHEREOF, the Company has caused this Amendment to be executed effective as of the date first written above.
         
  KAISER ALUMINUM CORPORATION
 
 
  By:   /s/ John M. Donnan    
    Name:   John M. Donnan   
    Title:   Senior Vice President and General
Counsel 
 
 

 

Exhibit 10.4
FIRST AMENDMENT
TO THE
KAISER ALUMINUM FABRICATED PRODUCTS
RESTORATION PLAN
     Kaiser Aluminum Fabricated Products, LLC, pursuant to Section 9.3 of the Kaiser Aluminum Fabricated Products Restoration Plan (the “Plan”), hereby adopts the following amendments to the Plan.
     1. Section 2.1(n) of the Plan is amended in its entirety to read as follows:
  (n)   Election Form . The document executed by an Eligible Employee pursuant to which the Eligible Employee elects a form of payment of his vested Account balance following his or her Separation from Service.
     2. Section 2.1(kk) of the Plan is amended in its entirety to read as follows:
  (kk)   Separation from Service . Separation from Service means a “separation from service” within the meaning of Section 409A of the Code.
     3. The second paragraph of Section 3.2(a) of the Plan is amended in its entirety to read as follows:
Such Election Form shall be completed prior to the date the Employee becomes a Participant; provided, however, that an Employee may complete his or her Election Form within the first 30 days following the date the Employee first becomes a Participant and such Election Form shall apply with respect to services to be performed after the election. An Election Form once made shall be irrevocable, except as otherwise provided in (b) below. In the event that the Participant fails to make a timely election as to the form of payment of all or a portion of the Participant’s Account following the Participant’s Separation from Service, such portion of the Participant’s vested Account balance shall be paid in a single lump sum distribution in the 90-day period after the date that is six (6) months following the Participant’s Separation from Service.
     4. The second sentence of Section 7.1 of the Plan (“Death Benefits”) is amended in its entirety to read as follows:
All payments and distributions pursuant to this Section 7.1 shall be in single lump sums and shall be paid in the 90-day period following the date of the Participant’s death.
     5. The amendments described above will be effective as of May 1, 2005. Except as specifically amended hereby, the Plan will continue in full force and effect.

 


 

     Executed this 31st day of December, 2008.
         
  KAISER ALUMINUM FABRICATED PRODUCTS, LLC
 
 
  By   /s/ John M. Donnan    
    Name:   John M. Donnan   
    Title:   Senior Vice President and General Counsel   
 

2