EXHIBIT 10.9(c)
WCI STEEL ACQUISITION, INC.
0000 XXXX XXXXXX XX
XXXXXX, XX 00000-0000
April 26, 2006
Xxxxx X. Xxxxxx
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Re: Deferred Compensation Agreement
Dear Xx. Xxxxxx:
I am writing to you regarding the Net Worth Appreciation Participation Agreement
(the "Net Worth Agreement") you signed with WCI Steel, Inc., an Ohio corporation
("Old WCI"). This letter sets forth the terms and conditions upon which WCI
Steel Acquisition, Inc. (the "Company") and any successor thereto will pay to
you amounts that accrued under the Net Worth Agreement as of March 31, 2006. The
obligations under this Agreement will become effective upon the effective date
of the Noteholders' Modified Plan of Reorganization of Old WCI and upon your
becoming an employee of the Company.
1. Deferred Amount
The amount of your benefit under this Agreement shall be equal to one million
seven hundred thirty-five thousand one hundred eight dollars ($1,735,108) (the
"Deferred Amount"). This Agreement makes no change in the amounts credited on
your behalf under the Net Worth Agreement as of March 31, 2006. No additional
amounts will be deferred on your behalf under this Agreement for any reason,
including, without limitation, interest or earnings on the Deferred Amount.
2. Vesting
Subject to Section 4 below, you shall have a non-forfeitable interest in the
Deferred Amount at all times.
3. Payment Schedule
(a) The Company shall pay your Deferred Amount in forty equal quarterly
installments, without interest, equal to forty-three thousand three hundred
seventy-seven dollars and seventy cents ($43,377.70) commencing three months
after the "Trigger Date" and at three month intervals thereafter (the "Payment
Term"). The "Trigger Date" shall be the earlier of (i) your 62nd birthday, (ii)
your completion of twenty continuous years of service with Old WCI and the
Company, or (iii) your "disability" (as defined in Section 409A of the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations and applicable
Internal Revenue Service guidance thereunder (the "Code")). The Company's Board
of Directors (the "Board") shall have full and final authority, which shall be
exercised in its discretion, to determine conclusively whether you have had a
"disability," and the date of "disability."
(b) In the event of your death prior to the Trigger Date or in the event of
your death before the end of the Payment Term, the present value of the unpaid
balance of the Deferred Amount as of the date of your death shall be paid in a
lump sum within sixty (60) days after the date of death to the beneficiary or
beneficiaries which you designated in a written notice to the Company. The
present value of your Deferred Amount shall be calculated using the long-term
applicable federal rate under Section 1274(d) of the Code. If you have not
designated a beneficiary, such amount shall be paid to your estate. You may
revoke or amend your beneficiary designation from time to time by written notice
to the Company.
(c) Neither the time nor form of payments under this Agreement may be
changed, including, without limitation, any acceleration of such payments,
except as may be permitted by the Board in its sole discretion in accordance
with Section 409A of the Code. Nothing in this Agreement shall prohibit the
Board from distributing your entire Deferred Amount to you in a single lump sum
payment in connection with a change of control (as defined in Section 409A of
the Code).
4. Conditions on Payment
The Company's obligation to pay the compensation provided for under this
Agreement is expressly contingent upon your compliance with the following
provisions:
(a) You agree to keep secret and inviolate all confidential information
about the business and affairs of the Company and Old WCI, including, without
limitation, business plans, product design and specifications, financial
engineering, and marketing information and information about costs,
manufacturing methods, names of suppliers and customers ("Confidential
Information") that shall have previously come or shall hereafter come into your
possession. If you disclose Confidential Information or if you use Confidential
Information for your own private benefit, or directly or indirectly for the
benefit of others, any payments that you were receiving under this Agreement
will immediately and automatically cease, and you will forfeit all of your
rights and benefits under this Agreement, including, but not limited to the
right to receive future payments.
(b) If you directly or indirectly, whether as employee, consultant,
proprietor, partner, controlling shareholder, or in any other capacity engage in
operational, production, marketing,
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sale, or financing activities of any entity involved in the production or sale
of flat rolled steel products that competes with the Company, or if you engage
in conduct constituting grounds for termination of your employment for "cause"
under an employment agreement between you and the Company, any payments that you
were receiving under this Agreement will immediately and automatically cease,
and you will forfeit all of your rights and benefits under this Agreement,
including, but not limited to the right to receive future payments. For purposes
of this provision, the term "Company" includes any affiliate of the Company and
"cause" is not limited to events that have occurred before your termination of
employment, nor is it necessary that the Board find "cause" prior to your
termination of employment.
(c) You agree not to file a claim for benefits with respect to the Net
Worth Agreement under the Noteholders' Modified Plan of Reorganization of Old
WCI.
Your covenants in this Section 4 are essential elements of this Agreement. The
Company would not have entered into this Agreement or employed or continued your
employment without your agreement to comply with these covenants.
5. Scope of Agreement
This Agreement replaces the Net Worth Agreement in its entirety. This Agreement
constitutes the entire understanding and agreement between you and the Company
with respect to the subject matter contained herein and supersedes any prior
agreements, understandings, restrictions, representations or warranties between
you and the Company or Old WCI with respect to such subject matter.
6. Miscellaneous
(a) This Agreement shall be interpreted, construed and administered in a
manner that satisfies the requirements of Section 409A of the Code.
(b) The Company shall withhold all applicable income taxes and employment
taxes from the amounts distributed hereunder as may be required by law.
(c) Your right to the Deferred Amount under this Agreement shall not be
assignable by you and shall not be subject to attachment, lien, levy, or other
creditors' rights under state or Federal law.
(d) Benefits under this Agreement shall be payable from the general assets
of the Company or pursuant to such other means as the Company deems appropriate
and you shall not be entitled to look to any source for payment of such benefits
other than the general assets of the Company.
(e) The Deferred Amount and any payments under this Agreement shall not
constitute compensation for the purposes of any benefit plan or agreement by the
Company unless expressly provided otherwise in such plan or agreement.
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(f) If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement
shall remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree shall remain in full force and
effect to the extent not held invalid or unenforceable.
(g) Nothing in this Agreement shall confer upon you any right to continue
in the employ of the Company or shall interfere with or restrict in any way the
rights of the Company, which are hereby expressly reserved, to discharge you at
any time for any reason whatsoever, with or without cause.
(h) The Company and you agree that (i) the provisions of this Agreement
constitute a "pension plan" within the meaning of Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), (ii) such plan is
unfunded and is maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees,
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, and
(iii) the provisions of this Agreement shall be governed by federal law.
(i) This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs and
legal representatives, including any entity with which the Company may merge or
consolidate or to which all or substantially all of its assets may be
transferred.
(j) This Agreement may not be amended orally, but only by an agreement in
writing signed by the parties hereto. Any action by the Company to amend shall
require Board action.
(k) Except to the extent preempted by ERISA, this Agreement will be
governed by the laws of the State of Ohio without regard to conflicts of laws
principles.
Please confirm that the foregoing correctly sets forth our full agreement with
respect to your Deferred Amount by signing and returning the enclosed copy of
this letter.
Sincerely,
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President
I agree as of the date first written above to the terms and conditions for
receiving the Deferred Amount under this Agreement.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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