Exhibit 10.1.3
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 7th day of April, 1994, between THE DOE RUN
RESOURCES CORPORATION, a New York corporation, doing business in Missouri under
the trade name "The Doe Run Company" (herein called the "Company"), with its
principal office at 0000 Xxxx 000 Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000 and Xxxxxxx
X. Xxxxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Employee has for some years been employed by the Company or a
predeessor, and Company desires to continue to employ the Employee and Employee
desires to continue to be employed by the Company, all on the terms hereof;
In consideration of the mutual covenants herein contained, it is hereby
agreed as follows:
1. Term and Duties.
Commencing on the date of this Agreement and continuing until October 31,
1999, unless sooner terminated or extended as herein provided (the "Employment
Term"), the Company shall continue to employ the Employee as its Vice President
Sales and Marketing. During the Employment Term the Employee shall continue to
devote all of his business time and his best efforts to the business of the
Company, and its subsidiaries, as may be necessary to perform his duties
hereunder, in accordance with the policies, procedures, business plans and
budgets from time to time established by the Board of
Directors, and the Chairman of the Board and the President and shall not have
any other business affiliations. Employee hereby accepts continued employment
hereunder.
2. Compensation.
In full compensation for the services to be rendered by the Employee to the
Company and its subsidiaries hereunder, during the Employment Term, the Company
will pay to the Employee, and the Employee shall accept:
(a) a basic annual salary of $160,032 for each employment year of the
Employment Term payable in installments not less frequently than monthly, and
increased as the Board of Directors may, from time to time, determine in its
discretion; plus
(b) for each fiscal year (November 1 to October 31) of the Company
ending during the employment of the Employee, a year end bonus of not less than
$30,000 nor more than $60,000 as may be determined by the Company in its sole
discretion, provided that the Employee is in the employ of the Company at the
close of such year and the Company shall not have incurred a net loss before
taxes for such fiscal year determined in accordance with generally accepted
accounting principles followed by the Company in preparing its audited balance
sheet as of the date of this Agreement but before giving effect to this clause
(b), and to like provisions in any other employment agreement to which the
Company is a party. The bonus for each fiscal year shall, if due, be paid as
promptly as practicable after the independent accountants for the Company shall
have determined, and reported in writing, as to whether the Company had a net
loss within the meaning of this clause (b) for such year; plus
2
(c) such additional amounts, if any, as the Board of Directors of the
Company may determine from time to time in its discretion.
3. Place of Employment.
The Employee's regular place of employment during the Employment Term shall
be at the principal executive office of the Company in the St. Louis, Missouri
metropolitan area. The Employee may not be required to relocate without his
consent.
4. Travel; Expenses.
The Employee shall engage in such travel as may reasonably be required in
connection with the performance of his duties, in accordance with prior
practice.
All reasonable travel and other expenses incurred by the Employee (in
accordance with the policies of the Company established from time to time) in
carrying out his duties hereunder will be reimbursed by the Company on
presentation to it of expense accounts and appropriate documentation in
accordance with the customary procedures of the Company for reimbursement of
executive expenses. The Employee shall be entitled to a travel expense advance
in the discretion of the Company when anticipated travel warrants such advance.
5. Early Termination of Employment Term on Disability or Death.
(a) If during the Employment Term, the Employee fails because of illness
or other incapacity (including incapacity because of substance abuse) to render
to the Company the services required of him hereunder for a period of two months
(during which
3
the Company shall continue the Employee's compensation at the rates herein
provided), the Company may, in its discretion, give one month notice of
termination of the Employment Term (during which the Employee's compensation
shall likewise be continued), and if the Employee shall not resume full
performance of his duties within such one month period, the Employment Term
shall terminate at the expiration thereof, provided that any such termination
shall not affect the right of the Employee (or his estate) to continue to
receive benefits under any disability insurance plan covering the Employee which
is in effect at the date of termination, and further provided that if any such
termination shall be during a fiscal year and the Company shall not have a net
loss before income taxes determined as provided in paragraph 2(b) for such
fiscal year, the Employee shall be entitled to a pro-rata portion of the minimum
bonus for such year based on the number of full months worked by him in such
year.
(b) The Employment Term shall end upon the death of the Employee,
provided that (i) if the Employee shall die during a fiscal year, and the
Company shall not have a net loss, determined as provided in paragraph 2(b), for
such fiscal year, the Employee shall be entitled to a pro-rata portion of the
minimum bonus for such year, based on the number of full months worked by him
during such year.
6. Vacation.
During the Employment Term, the Employee shall be entitled to vacation
periods not exceeding weeks in each year, to be taken at such time or times as
shall be mutually convenient to the Company and the Employee (but not more.than
two weeks consecutively). Unused vacation shall not accumulate from year to
year.
4
7. Confidentiality; Competition.
(a) For the purposes hereof, all confidential information about the
business and affairs of the Company (including, without limitation, business
plans, financial and marketing information and information about its secrets and
machinery, designs, plans, patterns and specifications, formulae, processes,
inventions and discoveries, and names of suppliers and customers and nature of
dealings with them) constitute "Company Confidential Information." For some
years, the Employee has been a senior officer of the Company or a predecessor.
He acknowledges that he has in the past had, and will continue to have, access
to and knowledge of Company Confidential Information, and that improper use or
revelation of same by the Employee during or after the termination of his
employment by the Company could cause serious injury to the business of the
Company. Accordingly, the Employee agrees that he will forever keep secret and
inviolate all Company Confidential Information which shall have come or shall
hereafter come into his possession, and that he will not use the same for his
own private benefit, or directly or indirectly for the benefit of others, and
that he will not disclose such Company Confidential Information to any other
person.
(b) During the Employment Term, the Employee 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 any aspect of the business of
lead mining, milling, recycling or sale within the continental United States
(which the parties acknowledge is the Company's trading area). For purposes of
the preceding sentence, the Employee shall be deemed to be engaged in any
business which any person for whom he shall perform services is engaged. Nothing
herein contained
5
shall be deemed to prohibit the Employee from owning, as a passive investment, a
security of any issuer which is not a supplier, vendor; customer or competitor
of the Company.
(c) Within the terms of this Agreement, it is intended to limit
disclosure and competition by the Employee to the maximum extent permitted by
law. If it shall be finally determined by any court of competent jurisdiction
ruling on this Agreement that the scope or duration of any limitation contained
in this paragraph 7 is too extensive to be legally enforceable, then the parties
hereby agree that the scope and duration (not greater than that provided for
herein) of such limitation shall be the maximum scope and duration which shall
be legally enforceable and the Employee hereby consents to the enforcement of
such limitation as so modified.
(d) The Employee acknowledges that any violation by him of the
provisions of this paragraph 7 could cause serious and irreparable damages to
the Company. He further acknowledges that it might hot be possible to measure
such-damages in money. Accordingly, the Employee further acknowledges that, in
the event of a breach or threatened breach by him of the provisions of this
paragraph 7, the Company may seek in addition to any other rights or remedies,
including money damages, an injunction or restraining order, restraining the
Employee from doing or continuing to do or perform any acts constituting such
breach or threatened breach.
8. Employee's Inventions.
The Employee agrees to assign and transfer to the Company, its successors
and assigns, his entire right, title and interest in and to any or all
inventions, designs, discoveries and improvements which he may make, either
solely or jointly with others,
6
during the Employment Term hereunder and for a period of one (1) year
thereafter, which relate in any way to the business or products of the Company,
together with all rights to letters patent which may be granted thereon.
Immediately upon making any inventions, designs, discoveries or improvements,
the Employee shall notify the Company and, without further compensation, shall
execute and deliver to the Company such documents as may be necessary to prepare
or prosecute applications for patents upon such inventions, designs, discoveries
and improvements, and shall assign and transfer to the Company his entire right,
title and interest therein. The Company shall pay all expenses involved in
carrying out the provisions of this paragraph 8.
9. Benefits.
The Company agrees to provide to the Employee during the Employment Term the
medical, hospitalization, disability insurance benefits and other benefits as it
provides to its other senior officers.
10. Employee's Representation.
Employee hereby represents to the Company that he has full right and power
to enter into this Agreement and carry out his duties hereunder, and that same
will not constitute a breach of or default under any employment,
confidentiality, non-competition or other agreement by which he may be bound.
7
11. Default by Employee.
If the Employee shall:
(i) commit an act of dishonesty against the Company or fraud upon the
Company; or
(ii) breach his obligations under-this Agreement and fail to cure such
breach within five (5) days after written notice thereof; or
(iii) be convicted of a crime involving moral turpitude; or
(iv) fail or neglect diligently to perform his duties hereunder and
continue in his failure after written notice;
then, and in any such case, the Company may terminate the employment of the
Employee hereunder and, in the event of any such termination, the Employee shall
no longer have any right to any and all benefits (including future salary
payments) which would otherwise have accrued after such termination.
12. Automatic Renewal.
This Agreement shall automatically renew and be extended from year to year
upon the expiration of the Employment Term (as extended if extended) unless
terminated by either party by written notice given to the other at least three
months prior to its terminationn date. If any such notice shall be given, this
Agreement shall terminate on the the next succeeding October 31.
13. Successors.
The rights, benefits, duties and obligations under this Agreement shall
inure to and be binding upon the Company, its successors and assigns and upon
the Employee and his legal representatives, legatees and heirs. It is
specifically understood, however, that this
8
Agreement may not be transferred or assigned by the Employee. The Company may
assign any of its rights and obligations hereunder to any subsidiary or
affiliate of the Company, or, by written instruction to a successor or surviving
corporation resulting from a merger, consolidation, sale of assets or stock, or
other corporate reorganization, on condition that the assignee shall assume all
of the Company's obligations hereunder (but nevertheless the Company shall
remain liable hereunder) and it is agreed that such successor or surviving
corporation shall continue to be obligated to perform the provisions of this
Agreement.
14. Notices.
Notices hereunder shall be in writing and shall be sent by telegraph or by
certified or registered mail, telecopy, or recognized overnight delivery service
(such as Federal Express) prepaid as follows:
To Employee: To Company:
Xxxxxxx X. Xxxxxxxx The Doe Run Company
c/o The Renco Group, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxx Xxxxxxx
Chairman
After October 1, 1994:
00 Xxxxxxxxxxx Xxxxx
00xx xxxxx
Xxx Xxxx, XX
with copies to:
9
The Doe Run Resources
Corporation
0000 Xxxx 000 Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: President
and
Xxxx Xxxxx & Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. D"Atri, Esq.
and shall be deemed to have been given when telecopied to the addressee or three
days after placed in the mail or the second business day following delivery to a
recognized overnight delivery service (such as Federal Express) or a telegraph
company, prepaid and properly addressed. Notices to the Employee may also be
delivered to him personally. Notices of change of address shall be given as
provided above, but shall be effective only when actually received.
15. Waivers.
The failure of either party to insist upon the strict performance of any of
the terms, conditions, and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions, and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of the Company, shall be
effective for any purposes whatsoever unless such waiver is in writing and
signed by the Company.
10
16. Entire Agreement; Governing Law.
There are no oral or written understandings concerning the Employee's
employment outside of this Agreement and the separate Net Worth Appreciation
Agreement between the Company and .the Employee. This Agreement may not be
modified except by a writing signed by the parties hereto. This Agreement
supersedes any and all prior employment agreements or understandings. This
Agreement is made under, and shall be construed in accordance with, the laws of
the State of Missouri, applicable to agreements to be performed wholly within
that state.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
THE DOE RUN RESOURCES CORPORATION
Attest: doing business as THE DOE RUN COMPANY
/s/ Xxxxxx Xxxxxxx By: /s/ Xxx Xxxx Xxxxxxx
----------------------- -----------------------------------
Witness:
/s/ Xxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
----------------------- -----------------------------------
Xxxxxxx X. Xxxxxxxx, Employee
11
