EXHIBIT 10.2.5
THE DOE RUN RESOURCES CORPORATION
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October 31, 1998
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RE: NET WORTH APPRECIATION PARTICIPATION AGREEMENT
Dear ▇▇▇:
This will confirm the understanding of The Doe Run Resources
Corporation (the "Company"), with you with respect to your Net Worth
Appreciation Participation, intended to constitute additional incentive
compensation to you.
1a) VESTING - Under your Net Worth Appreciation Agreement dated April
7, 1994, you have received a credit of 4/10 of 1% and provided you are
continually employed by the Company until March 31, 1999, or your employment
with the Company terminates between today and March 31, 1999 due to death or
permanent disability, you shall receive on March 31, 1999 an additional credit
of 1/10 of 1% for a total credit of 1/2 of 1% ("Maximum Credit").
1b) In addition, on October 23, 2000 provided you are continually
employed by the Company and serving in Peru on expatriate assignment to Doe Run
Mining, or one of its affiliates, you shall receive a credit of one percent (1%)
("Peru Credit").
2) CUMULATIVE NET INCOME PARTICIPATION BENEFIT - Upon the termination
of your employment by the Company (other than for cause), or your death or
permanent disability while in our employment, you (or your designee or estate)
shall be entitled to a payment ("Payment") equal to the sum of:
A) the product, if positive, of (i) the total percentage
credited to you under paragraph 1(a)
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(a maximum of one half of one percent (1/2%)) multiplied by (ii) the "Retained
Cumulative Net Income". The "Retained Cumulative Net Income" is the amount, if
any, of the cumulative consolidated net income of the Company available to its
Common Stock, less the amount of any dividends paid to the holders of the common
stock from April 7, 1994, through the end of either (at the Company's option)
(x) its fiscal quarter immediately preceding the date of your termination or (y)
the fiscal quarter in which your date of termination occurs; and
B) the product, if positive, of (i) the Peru Credit of one percent (1%)
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 Mining S.R. Ltda available to the holders of its common stock
from October 23, 1997, the date of your assignment to Doe Run Peru S.R. Ltda, an
affiliate of Doe Run Mining S.R. Ltda, until the date when such assignment is
effectively completed, less the amount of any dividends paid by Doe Run Mining
S.R. Ltda 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 the second
sentence of section 3 below.
If there is no positive "Retained Cumulative Net Income" there shall be
no payment under paragraph 2A. If there is no positive "Retained Peruvian
Cumulative Net Income" there shall be no payment under Paragraph 2B. The
determination of the Retained Cumulative Net Income and Retained Peruvian
Cumulative Net Income shall be made by the Company in accordance with generally
accepted accounting principles of the United States, consistently applied. If
your employment shall be terminated for cause at any time, you shall forfeit all
rights to receive any Payment.
3) DIVIDEND PARTICIPATION - If while you are employed by the Company,
the Company shall pay any cash dividend on its Common Stock, or the Company pays
management fees to The Renco Group, Inc. in excess of $ 2,400,000 per fiscal
year, then the Company shall make a cash payment to you equal to the total
amount of the cash dividend and management fees in excess of $2,400,000 per
fiscal year multiplied by your Maximum Credit. In addition, if while you are
serving in Peru at Doe Run Mining S.R. Ltda, or one of its affiliates, Doe Run
Mining S.R. Ltda pays cash dividends to its common stockholders and subsequent
to such payment while you are serving in Peru at Doe Run Mining S.R. Ltda, or
one of its
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affiliates, the Company pays dividends to its common stockholders, then the
Company shall make a cash payment to you equal to the lesser amount of the
product of cash dividends paid by a) Doe Run Mining S.R. Ltda (minus any cash
dividends paid by the Company as to which a payment was previously made under
this section 3), or b) the Company, multiplied by your Peru Credit, in addition
to the payment to you under the first sentence of this paragraph.
4) PAYMENT - The Payment shall be payable to you (or your designee or
estate) in 40 equal quarterly installments, without interest, commencing three
(3) months after the later of (x) the termination of your employment by the
Company or (y) your attaining 62 years of age, and at 3-month intervals
thereafter, PROVIDED, HOWEVER, that in the event of your death or permanent
disability, rendering you unable to engage in your customary employment, the
Payment, if it has not already commenced, will commence. The period during which
the payments will be made is herein called the "Payment Period". You have
advised us that your date of birth is January 22, 1939.
5) PAYMENT EFFECT ON OTHER BENEFITS - Any payments made to you pursuant
to this agreement, whether as a result of dividend participation or otherwise,
will not be counted as wages for the purpose of computing other benefits.
6) SALE OF SUBSTANTIALLY ALL OF COMPANY STOCK OR ASSETS - If, while you
shall be employed by the Company all or substantially all the stock or assets of
the Company shall be sold to a person who is not an affiliate of ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, then, upon the closing of such sale, the Maximum Credit shall be deemed
to be vested, and you shall be entitled to receive, as payment in full of your
participation, your pro rata share one half of one percent (1/2%) of the "net
proceeds" of the sale available for the Company's Common Stock, in kind, on the
same terms and conditions as the Company or its shareholder is being paid. "Net
proceeds", for purposes hereof, shall mean the amount, if any, by which the
proceeds of the sale after deducting all expenses of the sale, all applicable
taxes, all net liabilities retained by the seller and all amounts to which
holders of preferred stock are entitled exceeds the consolidated net worth
applicable to the Common Stock of the Company on April 7, 1994. In addition, you
shall receive the remaining payments due you for your Peru Credit paid in
accordance with section 4
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above. Except for such payment, neither you nor this Company shall have any
further rights or liabilities hereunder.
7) CONDITION PRECEDENT - NON COMPETE AND CONFIDENTIALITY - You shall
comply with the following provisions as a condition precedent to your right to
receive Payments:
(a) You acknowledge that, by reason of your employment by the Company,
you will have continuing access to and knowledge of company confidential
information and that improper use or revelation of same by you during or after
the termination of your employment by the Company could cause serious injury to
the business of the Company. Accordingly, you agree that you will forever keep
secret and inviolate all company confidential information which shall have come
or shall hereafter come into your possession, and that you will not use the same
for your own private benefit, or directly or indirectly for the benefit of
others, and that you will not disclose such company confidential information to
any other person.
(b) You agree you will not (whether as an officer, director, partner,
proprietor, investor, associate, employee, consultant, adviser, public relations
or advertising representative or otherwise), directly or indirectly, be engaged
in the mining and/or refining of metals, or in any other business in which the
Company is engaged, or proposed to engage, at the time of the termination of
your employment.
8) TERMINATION - This agreement may be terminated or amended at any
time at the sole discretion of The Doe Run Resources Corporation, provided,
however, that any amendment or termination shall not affect the rights you have
accrued under the agreement at the time of amendment or termination.
9) NOTICES - Any notice 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 to the Company, _ The Doe Run Resources Corporation, ▇▇▇▇
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writing, with a copy to The Renco Group, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
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10) OTHER - The agreement amends and restates in its entirety the Net
Worth Appreciation Agreement dated April 7, 1994 as amended on March 12, 1998
between the Company and yourself.
Please confirm that the foregoing correctly sets forth our full agreement with
respect to the subject matter contained herein by signing and returning the
enclosed copy of this letter.
Very truly yours,
The Doe Run Resources Corporation
By:
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CONFIRMED AND AGREED TO:
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THE DOE RUN RESOURCES CORPORATION
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As of January 15, 1999
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RE: AMENDMENT TO NET WORTH APPRECIATION PARTICIPATION AGREEMENT
Dear ▇▇. ▇▇▇▇▇▇▇:
This will confirm the understanding of this Corporation (the "Company")
with you with respect to our agreed amendments to your Net Worth Appreciation
Participation Agreement dated October 31, 1998 (which, among other things,
amended and restated in their entirety our prior agreements with you, (the
"Agreement")).
As you know, our parent company, The Renco Group, Inc. ("Renco"), has
elected to become, for Federal Internal Revenue Code purposes, a subchapter S
corporation (instead of a subchapter C corporation), effective with its fiscal
year beginning November 1, 1998, and has designated this Company and its United
States subsidiaries as qualified subchapter S subsidiaries (the "S election").
This designation is also applicable for those states which recognize such
election. This letter is intended to set forth our understanding as to the
changes in the Agreement intended to accommodate such election. Our subsidiaries
organized outside of the United States continue to be subchapter C corporations.
It is the intent of the parties to the Agreement that the S election
not alter the benefits payable under the Agreement; therefore we agree as
follows:
A. For purposes of calculating the benefits payable under the
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 fiscal
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periods beginning on or after November 1, 1998, as if this 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 thereunder
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 those of its subsidiaries which are qualified
subchapter S subsidiaries ("S Taxes").
Cumulative Income Statement Tax Difference shall be the cumulative
difference in income tax expense or benefit between the calculation of the C
Taxes and S Taxes, in each case calculated for the tax periods beginning on or
after November 1, 1998 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 November 1, 1998 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 dividend or
management fee or any other form of distribution in excess of $2,400,000
annually to The Renco Group, Inc. ("Renco") or an affiliate, other than a
subsidiary of the Company, shall be called a "Distribution".
B. Any payment due to you under Paragraph 2A of the Agreement (the
"Termination Benefit") shall be (A) 1/2 of 1% the Retained Cumulative Net
Income, as defined, less (B) 1/2 of 1% of the Cumulative Income Statement Tax
Difference (in each case
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through the end of the calculation period as determined pursuant to said
paragraph 2A) and excluding such Cumulative Income Statement Tax Difference to
the extent equal to Cumulative Cash Flow Tax Difference utilized in calculating
an Additional Compensation Benefit under the first sentence of Paragraph 3 of
the Agreement.
C. Any payment due to you under Paragraph 2B of the Agreement shall be
calculated as provided in said paragraph 2B.
D. The first sentence of paragraph 3 of the Agreement is hereby amended
to read as follows:
"While you are employed by the Company, there shall be paid to you (a)
one-half of 1% of the cumulative Distributions paid by the Company since
November 1, 1998 in excess of one-half of 1% of any positive Cumulative Cash
Flow Tax Difference, less (b) all amounts previously paid to you pursuant to
this provision since November 1, 1998."
E. The second sentence of paragraph 3 of the Agreement is hereby
amended to read as follows:
"In addition, if while you are serving in Peru at Doe Run Mining S.R.
Ltda. or one of its affiliates, Doe Run Mining S.R. Ltda. pays cash dividends to
its common stockholders and subsequent to such payment while you are serving in
Peru at Doe Run Mining S.R. Ltda. or one of its affiliates, the Company pays
dividends to its common stockholders, then, in addition to the payment to you
under the first sentence of this paragraph, 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 Mining S.R. Ltda or (b) the excess of one percent of the cumulative
Distributions paid by the Company subsequent to November 1, 1998 over one
percent of any positive Cumulative Cash Flow Tax Difference, less, in either
case, all amounts previously
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paid to you pursuant to this provision since November 1, 1998.
F. Any payment due to you under the first sentence of paragraph 6 of
the Agreement shall be (A) one-half of one percent of the "net proceeds" as
defined, plus (B) one-half of one percent of the cumulative Distributions paid
by the Company subsequent to November 1, 1998, less (C) one-half of one percent
of the Cumulative Income Statement Tax Difference through the date of sale, and
less (D) the amount of any payments previously paid to you under the first
sentence of paragraph 3 of the Agreement subsequent to November 1, 1998.
G. As amended hereby, the Agreement shall continue in full force and
effect.
Please confirm that the foregoing correctly sets forth our
understanding by signing and returning the enclosed duplicate of this letter.
Very truly yours,
THE DOE RUN RESOURCES CORPORATION
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Chairman of the Board
Accepted and Agreed to:
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