Amended and Restated Net Worth Appreciation Agreement
Effective November 1, 1995
In connection with your employment by WCI Steel, Inc. ("Company"), this amended
and restated Net Worth Appreciation Agreement ("Agreement") confirms the full
agreement for your compensation and your obligations under the Agreement and
supersedes the previous agreements with you dated May 1, 1994 ("Original
Effective Date") and January 5, 1995.
1. There is hereby established for your benefit an unfunded deferred
compensation account (the "Account"). Initially, there shall be credited to the
Account the sum of $1,819,584 representing 2% (your "Full Percentage") of the
increase in the net worth of the Company from May 1, 1994 through October 31,
1995 computed as provided in your agreements dated May 1, 1994 and January 5,
1995. Beginning November 1, 1995, and continuing for so long as you are
employed by the Company, as soon as practicable after the close of each fiscal
quarter of the Company, there shall be credited (charged) to the Account 2% of
the change in the "Net Worth" of the Company for the quarter then ended computed
as described herein. For purposes of this Agreement, the "Net Worth" of the
Company shall be deemed to be the amount of shareholders' equity determined in
accordance with Generally Accepted Accounting Principles used in the preparation
of the Company's consolidated financial statements and as filed with the
Securities and Exchange Commission, except that the amount of reported
shareholders' equity shall be adjusted to eliminate the charge for the net worth
appreciation program and to restate inventories
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on the first in- first out basis, including applicable income tax effects and
will not reflect any changes of the nature described in the first sentence of
paragraph 10.
There shall be charged to the Account payments made to you as
provided in paragraphs 4, 6, 8, 10 and 14 of this Agreement.
2. In connection with this Agreement, you agree to provide 30 days prior
written notice of your intention to voluntarily terminate your employment or
retire. In the event you voluntarily leave the Company's employ, the
"Measurement Date" for purposes of measuring compensation under this Agreement
shall be the end of the Company's fiscal quarter in which the 30-day notice
period ends. In the event your employment is terminated involuntarily by the
Company, the Measurement Date of the termination of your employment shall be the
end of the fiscal quarter preceding the termination of your employment.
3. Your interest in the Account vests as to 60% as of May 1, 1997 and vests as
to an additional 20% on each of May 1, 1998 and May 1, 1999 provided that you
are still employed by the Company at such dates. If your employment is
voluntarily terminated by you or if you are terminated for "Cause", prior to the
fifth anniversary of your Original Effective Date, the calculation of amounts
payable to you shall be based on your vested percentage. If your employment is
terminated without cause, by reason of your death, or by your serious disability
rendering you unable to perform your duties for the Company, you shall be deemed
vested in 60% of the Account if such event takes place before the third
anniversary of the Original Effective Date of your Agreement and an additional
20% for each full or fractional year thereafter, up to a maximum vesting of
100%. For purposes of this provision, termination shall be deemed to be for
"Cause" only if the grounds therefor are one or more of the following: (a)
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material conduct contrary to the best interests of WCI, (b) continuing refusal
or inability to perform the duties of your position (other than for reasons of
disability), or (c) illegal conduct having a material impact on WCI.
4. During the term of your employment, you will receive a distribution in each
fiscal year equal to 5% of the balance of your Account at the end of the
previous fiscal year, commencing with the fiscal year ended October 31, 1995,
calculated as if you had retired on that date and your percentage was fully
vested. This distribution will be made as soon as practicable after March 1 in
each fiscal year and will reduce the balance in your Account by the amount of
the distribution. This distribution will be at least $150,000 for each fiscal
year (provided that there is an adequate balance in your Account at the relevant
fiscal year end) and will be subject to a maximum of $300,000 for any fiscal
year when combined with payments received by you on account of dividends,
management fees paid to Renco in excess of $1,200,000 or other distributions to
shareholders for such fiscal year (see paragraph 5 below). Because the 5%
payment may be made before all dividend related payments for the fiscal year are
known, payments made to you under this provision may be subsequently reduced if
the amount of payment received when combined with the amount received pursuant
to paragraph 5 below exceeds $300,000. In this event, the reduction of this
payment will be made by reducing or eliminating amounts you would have otherwise
received as a result of subsequent dividends paid by the Company or future
payments made pursuant to the first sentence of this paragraph. (For example,
assume that 5% of your Account balance at the end of the previous year was
$200,000 which is paid to you on March 1 of the current fiscal year pursuant to
this paragraph, and you were also entitled to receive payments related to
dividends of $30,000 on each of January 1, April 1, July 1, and
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October 1. Under this scenario, you would be paid $30,000 on January 1,
$200,000 on March 1, $30,000 on April 1, $30,000 on July 1, and $10,000 on
October 1. The October 1 dividend related payment was reduced from $30,000 to
$10,000 because that amount resulted in the total amount paid you for that
fiscal year of $300,000). Nothing herein shall limit the amount of payments
you are entitled to receive solely as a result of dividend payments, or other
distributions made to shareholders (see paragraph 5). (For example, if in a
given fiscal year you are entitled to receive $350,000 solely as a result of
dividends paid by the Company, you will receive the full $350,000 as a result of
dividends, but because the total payment exceeds $300,000 you would not receive
any payment as a result of the 5% of prior years balance measurement as
described in this paragraph.)
5. If during your term of employment by the Company, the Company pays
dividends to shareholders, or it pays management fees to Renco in excess of
$1,200,000 in any fiscal year, or any other form of distribution to The Renco
Group ("Renco") or any affiliate of Renco (this distribution shall include any
transfer of assets from the Company or its subsidiaries to Renco or any other
subsidiary of Renco in any form whether as cash or other form of value which
shall have the effect of reducing the shareholders' equity of the Company), then
you shall be entitled to receive a payment in an amount equal to your Full
Percentage of such cash dividend, management fees paid to Renco in excess of
$1,200,000 in the fiscal year, or other distribution to shareholders. Payments
made pursuant to this paragraph will be considered when determining whether the
$150,000 minimum and $300,000 maximum described in paragraph 4 are met.
However, payments made pursuant to this paragraph are not subject to the
$300,000 maximum described in paragraph 4. Stock dividends (i.e., dividends
paid by the distribution of additional
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Company shares to shareholders) and stock splits will not result in a
distribution under this paragraph as no assets are distributed to shareholders
and shareholders' equity is not reduced. The payment of cash dividends or
other distributions to shareholders reduces the Net Worth of the Company and
thus will result in a reduction in your Account in an amount equal to your Full
Percentage of such dividends or distributions. Because the balance of your
Account is reduced as a result of the reduction in shareholders' equity, it will
not also be reduced by the related payment made to you in such cases.
6. Except as provided in paragraph 7 below, if there is an "Organized Sale" of
the equity securities of the Company by the shareholders, you will be entitled
to a payment equal to your Full Percentage times the difference between the net
proceeds (net of any related expenses and retained liabilities) on the sale and
your "Base Net Worth Amount" for the interest sold (i.e., your "Base Net Worth
Amount" times the ratio of the number of shares sold in the Organized Sale
divided by the the total number of shares outstanding immediately before the
Organized Sale). For purposes of this Agreement your "Base Net Worth Amount"
shall be a negative ($17,557,000). The payment due you will be paid by the
Company if all shareholders have the opportunity to participate in the Organized
Sale (whether they actually choose to participate or not) and by Renco if the
Organized Sale is limited to a sale by Renco, and not available on substantially
equal terms to all shareholders. In the event payments are made to you
pursuant to this paragraph, your Account will be reduced by the amount of the
payment attributable to the Net Worth of the Company (i.e., the balance of your
Account times the ratio of the number of shares of the Company sold in the
Organized Sale to the total number of shares outstanding immediately preceding
the Organized Sale). Payments made relating to the premium (i.e.,
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amount of net proceeds in excess of the Net Worth of the Company for the
interest sold), if any, received on the Organized Sale will not reduce your
Account balance. For purposes of this Agreement, an "Organized Sale" shall
mean a transaction or series of transactions whereby all shareholders are
entitled to participate and sell their shares or a transaction limited to the
sale of shares by Renco only. "Organized Sale" specifically does not include
the normal buying and selling of shares by individual investors in the market,
except that it would include the sale of shares in the market made by Renco to
the extent the total shares sold by Renco exceeds five percent on a cumulative
basis (see paragraph 7 below).
7. Notwithstanding paragraph 6 above, you will not be entitled to any payment
due to the sale of equity securities of the Company to a third party by Renco,
until such transaction(s) made subsequent to the date hereof exceeds 5%, in the
aggregate, of the shares held by Renco or Xxx Xxxx Xxxxxxx on the date hereof
(i.e., 1,537,345 common shares which shall be adjusted for any stock dividends
or stock splits made subsequent to November 1, 1995), and then only to the
extent such sale transaction(s) and/or subsequent sale transactions exceeds 5%,
in the aggregate, of the shares held by Renco or Xxx Xxxx Xxxxxxx on the date
hereof.
8. In addition to the above, if there is a "Change Of
Control" (as defined in paragraph 9 below), you will receive a payment at that
time of the remaining amount determined pursuant to paragraph 1. As a
condition of this payment, you will be required to agree to continued
employment, on substantially the same or better terms to you than those then in
effect, for a period of up to one year following the transaction which results
in the Change Of Control. Following this period, you will be entitled to leave
the employ of the Company and be relieved of your non-compete agreement. If
Renco sells its interest in full, or if there is a Change Of
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Control as described below, and upon payment in full of amounts due you
pursuant to this Agreement, the Company's and Renco's obligation to you under
this Agreement will be satisfied in full and the Agreement will terminate.
9. For purposes of this Agreement, Xx. Xxx Xxxx Xxxxxxx shall be deemed to
"Control" the Company provided that he, his immediate family, and estate or
trusts for the benefit of his immediate family, own 20 percent or more of the
outstanding equity of the Company, and, for so long as he is physically able,
Xx. Xxxxxxx or any of his lineal descendants retains the position of Chairman of
the Board of the Company. A "Change Of Control" will be deemed to have
occurred, if the aforementioned conditions of Control are not met or if another
individual, entity, or affiliated individuals or entities, holds a greater
voting interest than Xx. Xxx Xxxx Xxxxxxx, his immediate family, and estate or
trusts for the benefit of his immediate family.
10. The net worth Account will not be reduced by transactions the Company
enters into in its own securities (i.e., treasury stock transactions) nor will
it be increased by the issuance or sale, by the Company, of its own securities
(i.e., stock offerings whereby the proceeds of the offering are retained by the
Company for use in the business). No payment will be due you as a direct
result of the above described transactions unless such transactions result in an
effective distribution to shareholders, or an Organized Sale (as defined), or a
Change Of Control (as defined), in which case the provisions of paragraph 5,6
and/or, 8, if applicable, shall apply. If the Company purchases shares held by
Renco, you will be entitled to a payment equal to your Full Percentage times the
difference between the amount paid for the shares and your Base Net Worth Amount
for the shares purchased (i.e. your Base Net Worth Amount times the ratio of the
number of shares purchased from Renco divided by the total number of shares
outstanding
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immediately before the share purchase). Any such purchase will reduce the
shareholders' equity of the Company and thus reduce your Account balance by an
amount equal to the payment made to you.
11. Upon termination of your employment with the Company, the vested balance of
your Account will be frozen (i.e., not subject to changes, either up or down, in
the Net Worth of the Company) as of the Measurement Date and quarterly payments,
without interest, equal to the balance of your Account divided by 40 will
commence upon the earliest of your age 62, ten years after the termination of
your employment, or twenty years after the date you were first employed by the
Company. In any event, quarterly payments (computed as described above) will
commence upon the earliest of (a) age 62, (b) twenty years after the date you
were first employed by the Company or (c) immediately if your service is
involuntarily terminated without Cause. The above described deferments in
payment would also not apply in event of your serious disability which prevents
you from performing your duties or in other cases of health or family crisis
which, in the sole discretion of the Compensation Committee, warrant waiver of
the deferment period and installment payments computed as described above will
then commence immediately. In the event of your death, your estate or
beneficiaries shall receive a payment, within 90 days of your death, equal to
the present value of the vested balance of your Account (pursuant to the vesting
provisions of the third sentence of paragraph 3), computed using (a) 40 equal
quarterly installments if your Account is not in pay status or the remaining
payments due you under the Agreement if your Account is in pay status, and (b)
the discount rate used for computing the present value of annuitized benefits
under the provisions of the Internal Revenue Code of 1986 and the regulations
thereunder and as same may be amended from time to time.
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12. Payments made under this agreement are subject to your faithful adherence
to your confidentiality agreement and to your agreement, by your signature
below, to not enter into any arrangement, including employment arrangements,
with any organization that is a competitor of the Company until after the date
of the last scheduled payment due you under this Agreement, including any
waiting or deferment period as provided in paragraph 11 above. The non-compete
restrictions of this Agreement shall no longer apply if there is a Change Of
Control as defined in paragraph 9.
13. Your rights under this Agreement may not be assigned, transferred, pledged
or hypothecated without the prior approval of the Company, except that, upon
your death, your interest in the Account will vest in your estate or heirs and
that during your lifetime, you may assign your interest to a revocable or
irrevocable trust for the primary benefit of your spouse or any lineal
descendant of your or your spouse's grandparents.
14. Upon signing this Agreement, you will receive a one-time payment equal to
the greater of $150,000 or 10% of the balance of your Account as of October 31,
1995. This payment is in addition to amounts that may be due you as a result
of other provisions of this Agreement and will not be considered when
determining whether the maximum annual payment described in paragraph 4 has been
met or exceeded. This payment will reduce the balance of your Account.
Please confirm that the foregoing sets forth the full agreement with respect to
your net worth appreciation participation by signing and returning the enclosed
copy of this Agreement.
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/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Vice President Commercial
WCI Steel, Inc.
By /s/ Xxxxxx X. Xxxxx
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X. X. Xxxxx, President and CEO
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