THE DOE RUN RESOURCES CORPORATION 1801 PARK 270 DRIVE ST. LOUIS, MISSOURI 63146
Exhibit 10.2.8
THE DOE RUN RESOURCES
CORPORATION
0000 XXXX 000 XXXXX
XX. XXXXX, XXXXXXXX 00000
November 1, 2002
[ ]
The Doe Run Resources
Corporation
0000 Xxxx 000 Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Re: Net Worth Appreciation Agreement
Dear Mr :
This letter, dated as of November 1 (the “Base Date”), 2002 sets forth the agreement between you and The Doe Run Resources Corporation, (the “Company”) with respect to your Net Worth Appreciation Benefit, intended to constitute additional incentive compensation to you as an employee of the Company. Upon your execution of this letter, any prior Net Worth Appreciation Agreement or amendments thereto between you and DR Acquisition Corp or the Company shall terminate and all obligations pursuant to such agreement as amended shall cease.
1. Vesting.
(a) On the Base Date in 2005, provided that you have been continuously in the employ of the Company from the date hereof through that date, you shall receive a Net Worth Appreciation Credit of % and on the Base Date in each of the years 2006 and 2007 you shall receive an additional Net Worth Appreciation Credit of %, provided that you have been continuously in the employ of the Company from the date hereof to the applicable Base Date for a maximum credit, if you remain in the employ of the Company continuously through the Base Date in 2007, of % (the “Maximum Credit”). The aggregate number of Net Worth Appreciation Credits received pursuant to this Section 1(a) on or prior to a given date shall be hereinafter referred to as “Vested Credits”. You shall not receive any credit unless you remain in the employ of the Company from the date hereof continually until the Base Date in 2005, and thereafter you shall not receive credit for any partial year, provided that (a) if your employment terminates due to death or permanent disability preventing you from performing your usual employment functions and duties (“disability”) on or after the Base Date in 2003 and prior to the Base Date in 2005, you shall receive a credit of % if such termination is prior to the Base Date in 2004 and % if such termination is on or after the Base Date in 2004 and prior to the Base Date in 2005, and (b) if your employment terminates after the Base Date in 2005 and before the Base Date in 2007, due to death or disability, you shall receive a credit of % for the partial year in which the termination takes place (in addition to all credits previously accrued).
(b) In addition, in consideration of your having been continually employed by the Company and serving in Peru on expatriate assignment to Doe Run Peru SRL or one of its affiliates through [ ], you have a separate Peruvian credit of % (“Peru Credit”).
2. Treatment of Matters in Calculation of Benefits.
(a) For the purposes of calculating the benefits payable under this Agreement, the Company will continue to calculate Federal corporate income taxes and the corporate income taxes for those jurisdictions in which the Company and its subsidiaries do business, for the fiscal periods or portions thereof beginning on or after the Base Date in 2002, as if the Company and its subsidiaries had continued to have C corporation status under the Federal Internal Revenue Code and under state and local tax laws, in accordance with the provisions of generally accepted accounting principles and the Internal Revenue Code and regulations thereunder and under state and local tax laws applicable to C corporations as from time to time in effect (“C Status”). Such tax calculations will include calculations of current and deferred tax expense or benefit and current and non-current tax assets and liabilities (“C Taxes”) and the differences (“Tax Differences”) between the C Taxes and the taxes as recorded by the Company and its subsidiaries while being designated a qualified subchapter S subsidiary (“S Taxes”).
(b) Cumulative Income Statement Tax Difference shall be the cumulative difference in income tax expenses or benefit between the calculation of the C Taxes and S Taxes, in each case calculated for the tax periods or portions thereof beginning on or after the Base Date in 2002, and through the end of the calculation period. Cumulative Cash Flow Tax Difference shall be the cumulative difference in income tax payments, net of refunds, between the calculation of the C Taxes and S Taxes in each case made after the Base Date in 2002 and applicable to earnings of the Company on and after the Base Date in 2002, or which would be in the case of C Taxes, or are in the case of S Taxes, immediately due and payable, contemporaneously with the payment of any Distributions, as defined below. A “Distribution” for purposes of this Agreement shall mean a dividend, management fee, or any other form of distribution to The Renco Group, Inc. (“Renco”) or an affiliate of Renco other than a subsidiary of the Company (including a transfer to Renco of assets in any form whether as cash or other form of value which shall have the effect of reducing the net worth of the Company), in excess of the Renco Amount (as defined herein), provided that payments made in respect of any debt to Renco, including, but not limited to, principal interest and fees thereon, or the preferred stock of the Company, including, but not limited to, dividends thereon and redemptions thereof, shall not be a Distribution. The “Renco Amount” shall be equal to $2,400,000 per annum, calculated cumulatively so that unused portions shall carry over to succeeding years.
(c) In connection with the annual audit of the financial statements of the Company, the Company’s Board of Directors will require that the independent public accountants issue a special report indicating their agreement with the Tax Differences.
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3. Net Worth Appreciation Benefit. At the time and in the manner specified in Section 4, you shall be entitled to a net worth appreciation payment (“Payment”) equal to the sum of:
(a) (A) the product of the Vested Credits and the Net Worth Increment, as defined below, less (B) the product of the Vested Credits and the Cumulative Income Statement Tax Difference (the calculation period shall end at the end of the Company’s fiscal quarter immediately preceding your date of termination) and excluding such Cumulative Income Statement Tax Difference to the extent equal to Cumulative Cash Flow Tax Difference utilized in calculating amounts payable under Paragraph 5(a). The “Net Worth Increment” is the amount, if any, by which the consolidated net worth of the Company and its subsidiaries, as at the end of its fiscal quarter immediately preceding the date of your termination, exceeds its consolidated net worth as of the date hereof, provided, however, that any increase in consolidated net worth resulting from a capital contribution to the Company or the sale of stock of the Company shall be disregarded in calculating Net Worth Increment, and further provided that preferred stock of the Company and cash payments of dividends and payments in kind thereon shall be treated as debt of the Company for purposes of calculating consolidated net worth. For clarity, it is understood that the Net Worth Increment will not include charges for interest on the restructured debt of the Company to the extent not included as interest expense under GAAP as accounted for under FAS 15, nor will the Tax Differences include any benefit for such interest on such restructured debt. And;
(b) the product, if positive, of (i) the Peru Credit multiplied by (ii) the “Retained Peruvian Cumulative Net Income.” The Retained Peruvian Cumulative Net Income is the amount, if any, of the cumulative net income of Doe Run Peru SRL available to the holders of its common stock from October 23, 1997, the date of your assignment to Doe Run Peru SRL until the date when such assignment is effectively completed, less the sum of (i) imputed interest of 11¼% per annum, assumed to have been payable on $125,000,000 of the $139,062,500 Subordinated Promissory Note of the Company in favor of The Doe Run Resources Corporation (“Resources”), initially due October 1, 2005 (the “Subordinated Note”) (net of any income tax benefits which would have resulted had such interest actually been charged by Resources) calculated from September 12, 2002 until such time that $125,000,000 of the Subordinated Note is paid in full or in part, and if partially paid, the revised amount shall be thereafter used in the imputed interest calculation until paid in full, and (ii) the amount of any dividends paid by Doe Run Peru to the holders of its common stock during such period, but only if you received actual cash payments based on such dividends as outlined in Section 5(c) below.
The determination of the independent public accountants for the Company as to the Net Worth Increment and Retained Peruvian Cumulative Net Income, made in accordance with generally accepted accounting principles, consistently applied, shall be conclusive on each of us. If there is no Net Worth Increment, no amount shall be payable pursuant to Section 3(a). If there is no Retained Peruvian Cumulative Net Income, no amount shall be payable pursuant to Section 3(b). If your employment is terminated for cause, you shall not be entitled to receive any Payment.
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4. Payment. The Payment shall be payable to you (or your designee or estate) in 40 equal quarterly installments, without interest, commencing three months after the termination of your employment, and at 3 month intervals thereafter. Notwithstanding any provision in this Agreement, the Company shall not be required to pay you (i) any Payment, where the making of such Payment would violate any agreement between the Company and any lender of the Company, or (ii) in the event that any agreement between the Company and any lender of the Company limits the aggregate amount that the Company may pay as bonuses, net worth appreciation payments, profit sharing payments or other payments of similar nature (“Restricted Payments”) during any period, any Payment in excess of your pro rata portion of the aggregate amount of applicable Restricted Payments which the Company is permitted to pay. In the event that the Company is unable to make a Payment due to the preceding sentence, the Company’s obligation to make such Payment shall be deferred until such time that the Company is permitted to make such Payment pursuant to the preceding sentence.
5. Dividends; Sale of Substantially All of the Company’s Stock or Assets.
(a) If and in the event that the Company shall make a Distribution while you shall be employed by the Company, then you shall be entitled to receive, as additional compensation, (“Additional Compensation Benefit”) an amount equal to (A) the excess of (i) the product of the Maximum Credit and the cumulative Distributions paid by the Company subsequent to the Base Date in 2002 over (ii) the product of the Maximum Credit and any positive Cumulative Cash Flow Tax Difference less (B) the amount of Additional Compensation Benefit previously paid to you subsequent to the Base Date in 2002. This provision shall not apply to intercompany payments among the Company and its own wholly-owned subsidiaries or among two wholly-owned subsidiaries of the Company, or to reimbursement to Renco for a proportionate part of costs, such as audit charges and insurance premiums, paid by Renco on behalf of itself and its subsidiaries, including the Company;
(b) If, while you shall be employed by the Company (and whether before or after the Base Date in 2007), all or substantially all the stock or assets of the Company shall be sold to a person who is not an affiliate of Xxx Xxxx Xxxxxxx, or if The Renco Group, Inc. sells a controlling interest in the Company, then, upon the closing of such sale, your full Maximum Credit shall be deemed to be vested, and you shall be entitled to receive, in kind and on the same terms and conditions as the Company or its shareholder is being paid as payment in full of your participation, an amount equal to (A) the product of the Maximum Credit and any Net Proceeds (as defined below) of the sale, plus (B) the product of the Maximum Credit and the cumulative Distributions paid by the Company subsequent to the Base Date in 2002, less (C) the product of the Maximum Credit and the Cumulative Income Statement Tax Difference through the date of sale, and less (D) the amount of any Additional Compensation Benefit previously paid to you subsequent to the Base Date in 2002. “Net Proceeds”, for purposes hereof, shall be equal to the amount, if any, of the proceeds of the sale after deducting all expenses of the sale, all applicable federal, state and local taxes, all liabilities retained by the seller, and all amounts paid or due to holders of the Company’s preferred stock. Except for such payment, neither you nor the Company shall have any further rights or liabilities hereunder.
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(c) In addition, if while you are serving in Peru at Doe Run Peru SRL or one of its affiliates, Doe Run Peru SRL pays cash dividends to its common stockholders and subsequent to such payment while you are serving in Peru at Doe Run Peru SRL or one of its affiliates, the Company pays dividends to its common stockholders, then, in addition to the other payments to you under this Section, the Company shall make a cash payment to you equal to the lesser of (a) one percent of the cash dividend paid by Doe Run Peru SRL or (b) the excess of one percent of the cumulative Distributions paid by the Company subsequent to November 1, 2002 over one percent of any positive Cumulative Cash Flow Tax Difference, less, in either case, all amounts previously paid to you pursuant to this provision since November 1, 2002.
6. Condition Precedent. The Company’s obligation to make the Payment to you shall be conditioned on your faithful adherence to your employment arrangements with the Company and on your refraining from engaging, during the period over which such payments are to be made to you, directly or indirectly in any activity which is competitive with the business engaged in by the Company at the date of termination of your employment. If you do engage in any such competitive activities, then we shall no longer be obligated to make any payments to you hereunder.
7. Notice. Any notices to be sent pursuant hereto shall be sent by hand, certified or registered mail or overnight service to you, at the address indicated above and a copy to The Renco Group, Inc. at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000, 42nd floor, to the attention of Xxx Xxxx Xxxxxxx, or to any other address which the Company or Renco may designate by notice in writing.
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Please confirm that the foregoing correctly sets forth our full agreement with respect to your net worth appreciation benefit by signing and returning the enclosed copy of this letter.
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Very truly yours, |
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Xxx Xxxx Xxxxxxx |
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Chairman of the Board |
Accepted and Agreed to: |
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