Exhibit 10.1
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TERMINATION AND CONSULTING AGREEMENT
This Termination and Consulting Agreement (this "Agreement") by and among
Noranda Aluminum Holding Corporation ("Parent"), Noranda Aluminum, Inc. (the
"Company"), and Xxxxxxx Xxxxxxxx (the "Consultant") is dated as of the 14th day
of October, 2008.
WHEREAS, the Consultant has faithfully served the Company and its
affiliates for many years, including as Chief Financial Officer of the Company,
and has considerable knowledge and experience with respect to the Company's
operations; and
WHEREAS, the Consultant and the Company have agreed that the Consultant
will retire from active service with the Company and its affiliates as of
October 31, 2008 (the "Date of Termination"); and
WHEREAS, the Company and Parent have determined that it is in their best
interests for the Consultant to provide his continued services and expertise to
the Company and Parent following the Date of Termination and to ensure that the
Consultant cannot perform services for a competitor of the Company, Parent and
their respective affiliates, all on the terms and conditions set forth below;
NOW, THEREFORE, it is hereby agreed as follows:
1. Retirement from Employment; Severance Payments.
(a) The Consultant hereby retires from his employment with the Company,
effective as of close of business on the Date of Termination, and concurrently
resigns from all offices and directorships he holds with the Company, Parent or
any of their respective affiliates.
(b) Subject to the Consultant's compliance with the terms of this
Agreement, the Company agrees to provide the Consultant with the payments and
benefits determined pursuant to Section 4 of, and Exhibit A to, the Noranda
Aluminum, Inc. Senior Managers Severance Plan (the "Severance Plan") and such
other benefits as provided in the letter set forth as Attachment B hereto,
provided, that, as of the Date of Termination, the Consultant executes and,
prior to the Revocation Date does not revoke, a release substantially in the
form set forth on Attachment A hereto (the "Release"). The "Revocation Date"
shall be the date that is eight (8) days after the date on which the Consultant
signs the Release. The Consultant acknowledges and agrees that, except as
expressly set forth in this Agreement and Attachment B hereto, he has no right
to any payments or benefits under the Severance Plan, and expressly waives any
rights under such plan.
2. Consulting Services.
(a) From the Date of Termination through May 18, 2012, or such earlier date
as may be provided pursuant to Section 2(c) or (d) below (the "Consulting
Term"), in consideration for the compensation provided for below, the Consultant
shall make himself available to Parent and the Company, at mutually convenient
times and places, for such consulting services as may be requested by them. The
Consultant expressly agrees to render up to ten (10) hours of such services per
calendar month during the Consulting Term, if so requested by Parent and the
Company.
(b) During the Consulting Term, the Company shall pay the Consultant a fee
of two thousand dollars ($2,000.00) per month, payable monthly in advance (the
"Fee"). Further, the Consultant shall be entitled to reimbursement for all
reasonable expenses incurred by him in the performance of services hereunder, in
accordance with the policies of Parent, the Company or their respective
affiliates.
(c) During the Consulting Term, any stock options previously granted to the
Consultant under the Parent's Amended and Restated 2007 Long-Term Incentive Plan
(the "LTIP") shall continue to vest in accordance with the terms of the LTIP and
any applicable option award agreements and any post-termination exercise period
applicable to any such options shall not commence until the termination of the
Consulting Term (provided that such options shall in no event be exercisable
beyond their original scheduled term). In consideration for the foregoing, the
Consultant (i) agrees not to exercise any such stock options without the prior
written consent of the Parent and (ii) acknowledges that any such attempted
exercise shall be null and void and without effect, except that (x) in the event
of a Tag-Along Transaction, the Consultant shall be permitted to exercise an
amount of his then-vested options in order to permit him to fully participate in
such Tag-Along Transaction on a proportionate basis with each of the Other
Holders and (y) the Consultant may be required to exercise an amount or all of
his then-vested options in the event of a Drag-Along Sale (all capitalized terms
used in this sentence but not defined herein shall have the meanings ascribed to
them in the Securityholders Agreement).
(d) If the Consulting Term terminates for any reason, the Consultant shall
not be required to render any further services and shall not be entitled to, nor
shall the Company or Parent have any obligation to pay, any further portion of
the Fee.
(e) The Consultant's status during the Consulting Term shall be that of an
independent contractor and not, for any purpose, that of an employee or agent
with authority to bind Parent or the Company in any respect. Except as provided
above, the Consultant shall not be eligible for any additional compensation or
benefits from Parent or the Company. Any payments made to the Consultant
hereunder shall not be taken into account in computing the Consultant's salary
or compensation for the purposes of determining any benefits or compensation
under (a) any pension, retirement, life insurance or other benefit plan of the
Company, Parent or any of their respective affiliates or (b) any agreement
between the Company, Parent or any of their respective affiliates and the
Consultant.
(f) Notwithstanding anything to the contrary in the Amended and Restated
Securityholders Agreement of Parent dated as of October 23, 2007 (the
"Securityholders Agreement"), solely for purposes of Section 6 of the
Securityholders Agreement, the Consultant's termination of employment shall be
deemed to (i) occur on the final day of the Consulting Term and (ii) be a
termination by Parent without Cause; provided, however, that if Parent or the
Company terminate the Consulting Term with Cause or the Consultant terminates
the Consulting Agreement for any reason, for purposes of Section 6 of the
Securityholders Agreement, the Consultant's "termination of employment" shall be
deemed to be a termination by Parent with Cause. For purposes of this Agreement,
"Cause" shall mean: (i) the willful and continued failure of the Consultant to
perform substantially the Consultant's duties under this Agreement (other than
any such failure resulting from incapacity due to physical or mental illness),
(ii) the willful engagement by the Consultant in illegal conduct or gross
misconduct which is injurious to the Parent or the Company, or (iii) a violation
by the Consultant of the terms of Sections 3 through 4 of this Agreement.
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(g) All payments and other consideration made or provided to the Consultant
under this Agreement shall be made or provided without withholding or deduction
of any kind, and the Consultant shall assume sole responsibility for discharging
all tax or other obligations associated therewith.
3. Confidentiality. The Consultant shall hold in a fiduciary capacity for
the benefit of Parent, the Company, and their respective affiliates
(collectively, the "Affiliated Entities" and each such entity, including the
Company and Parent, an "Affiliated Entity") all secret or confidential
information, knowledge or data relating to any of the Affiliated Entities, and
their respective businesses, which he obtained during his employment by the
Affiliated Entities, and all such information, knowledge or data relating to the
Affiliated Entities, and their respective businesses, which he obtains during
his service as a consultant hereunder, and which shall not be or become public
knowledge (other than by acts by the Consultant or representatives of the
Consultant in violation of this Agreement). After termination of the Consulting
Term, the Consultant shall not, without the prior written consent of Parent or
as may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than Parent and those
designated by it.
4. Nonsolicitation; Non-Competition; Full Force and Effect. Notwithstanding
anything herein or in the Securityholders Agreement to the contrary, the
Consultant acknowledges and agrees that (i) his obligations and the Company's,
Parent's and their respective affiliates' rights under Section 9 of the
Securityholders Agreement shall remain in full force and effect, (ii) for the
avoidance of doubt, and notwithstanding anything to the contrary in, and in no
way in limitation of, such Section 9, such obligations and rights shall extend
to, and prohibit, the Consultant's engagement, directly or indirectly, as an
employee, consultant, director or service provider with any entity (or any
affiliate of such entity regardless of whether such affiliate is engaged) that
is engaged or could reasonably become engaged in the procurement, sale,
production or brokering of aluminum metal and its key raw material inputs
including, without limitation, bauxite, alumina, primary aluminum and related
products, and rolled aluminum products and (iii) for purposes of such Section 9,
the "Restricted Period" shall mean the period commencing on the Date of
Termination and ending on the third anniversary thereof. Section 9 of the
Securityholders Agreement (as modified by the immediately preceding sentence) is
hereby incorporated into this Section 4 of this Agreement.
5. Injunctive Relief. The Consultant acknowledges that the time, scope,
geographic area and other provisions of Sections 3 and 4 of this Agreement
(including, by incorporation, Section 9 of the Securityholders Agreement, as
modified by Section 4 of this Agreement) (the "Covenants") have been
specifically negotiated by sophisticated commercial parties and agree that all
such provisions are reasonable under the circumstances of the activities
contemplated by this Agreement. The Consultant acknowledges and agrees that the
terms of the Covenants: (i) are reasonable in light of all of the circumstances,
(ii) are sufficiently limited to protect the legitimate interests of the
Affiliated Entities, (iii) impose no undue hardship on the Consultant and (iv)
are not injurious to the public. The Consultant further acknowledges and agrees
that the Consultant's breach of the provisions of the Covenants will cause
Parent and the Company irreparable harm, which cannot be adequately compensated
by money damages, and that if Parent or the Company elects to prevent the
Consultant from breaching such provisions by obtaining an injunction against the
Consultant, there is a reasonable probability of Parent or the Company's
eventual success on the merits. The Consultant consents and agrees that if the
Consultant commits any such breach or threatens to commit any breach, Parent
and/or the Company shall be entitled to temporary and permanent injunctive
relief from a court of competent jurisdiction, without posting any bond or other
security and without the necessity of proof of actual damage, in addition to,
and not in lieu of, such other remedies as may be available to Parent and the
Company for such breach, including the recovery of money damages. In the event
that the Covenants shall be determined by any court of competent jurisdiction to
be unenforceable by reason of their extending for too great a period of time or
over too great a geographical area or by reason of their being too extensive in
any other respect, they shall be interpreted to extend only over the maximum
period of time for which they may be enforceable and/or over the maximum
geographical area as to which they may be enforceable and/or to the maximum
extent in all other respects as to which they may be enforceable, all as
determined by such court in such action.
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6. Successors. This Agreement is personal to the Consultant and without the
prior written consent of Parent shall not be assignable by the Consultant
otherwise than by will or the laws of descent and distribution. Parent and the
Company shall each require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
their respective businesses and/or assets to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that Parent or
the Company (as applicable) would be required to perform it if no such
succession had taken place. As used in this Agreement, "Parent" and the
"Company" shall mean Parent and the Company, respectively, as hereinbefore
defined and any successor to their respective businesses and/or assets which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
7. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without reference to principles of conflict
of laws. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
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If to the Consultant:
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To the most recent address on file with the Company
If to Parent:
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Noranda Aluminum Holding Corporation
000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
If to the Company:
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Noranda Aluminum Inc.
000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Vice President, Legal & HR
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision (or portion
thereof) of this Agreement shall not affect the validity or enforceability of
any other provision (or portion thereof) of this Agreement.
(d) This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and said counterparts shall constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the Consultant has hereunto set the Consultant's hand
and, pursuant to the authorization from their respective Boards of Directors,
Parent and the Company have each caused these presents to be executed in its
name on its behalf, all as of the day and year first above written.
XXXXXXX XXXXXXXX
/s/ Xxxxxxx Xxxxxxxx
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NORANDA ALUMINUM HOLDING
CORPORATION
By /s/ Xxxx X. Xxxxx
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NORANDA ALUMINUM, INC.
By /s/ Xxxx X. Xxxxx
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ATTACHMENT A
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GENERAL RELEASE
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THIS RELEASE (the "Release") is entered into between Xxxxxxx Xxxxxxxx
("Consultant"), Noranda Aluminum Holding Corporation ("Parent") and Noranda
Aluminum, Inc., a Delaware corporation ("Noranda"), for the benefit of Parent,
Noranda and each of the Affiliated Entities (as defined in the Termination and
Consulting Agreement, dated October 14, 2008, between Parent, Noranda and
Consultant (the "Termination Agreement")). The entering into and non-revocation
of this Release is a condition to Consultant's right to receive the payments
under the Termination Agreement. Capitalized terms used and not defined herein
shall have the meaning provided in the Termination Agreement.
Accordingly, Consultant, Parent and Noranda agree as follows.
1. In consideration for the payments and other benefits provided to
Consultant by the Termination Agreement, to which Consultant is not otherwise
entitled, and the sufficiency of which Consultant acknowledges, Consultant
represents and agrees, as follows:
(a) Consultant, for himself, his heirs, administrators, representatives,
executors, successors and assigns (collectively "Releasers"), hereby irrevocably
and unconditionally releases, acquits and forever discharges and agrees not to
xxx Parent, Noranda or any Affiliated Entity or any of its or their
subsidiaries, divisions, affiliates and related entities and their respective
current and former directors, officers, shareholders, trustees, employees,
consultants, independent contractors, representatives, agents, servants,
successors and assigns and all persons acting by, through or under or in concert
with any of them (collectively "Releasees"), from all rights and liabilities up
to and including the date of this Release arising under or relating to the
Termination Agreement and from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, actions,
causes of actions, suits, rights, demands, costs, losses, debts and expenses of
any nature whatsoever, known or unknown, suspected or unsuspected and any claims
of wrongful discharge, breach of contract, implied contract, promissory
estoppel, defamation, slander, libel, tortious conduct, employment
discrimination or claims under any federal, state or local employment statute,
law, order or ordinance, including any rights or claims arising under Title VII
of the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. ss. 621 et seq. ("ADEA"), the laws
of Tennessee, including the Tennessee Fair Employment Practices Law (prohibits
employment discrimination based on race, creed, color, religion, sex, national
origin or age) (Tenn. Code Rev. Xxx. ss. 4-21-101 et seq.), Tennessee Handicap
Discrimination Law (Tenn. Code Rev. Xxx. ss.8-50-103 et seq.), Whistle Blower
Protection (Tenn. Code Rev. Xxx. ss. 50-1-304(a) to (g), as amended by Ch. 511,
L. 2000, effective July 1, 2000), miscellaneous Tennessee wage provisions (Tenn.
Code Rev. Xxx. ss. 50-2-102; et seq.), Tennessee Equal Pay Law (Tenn. Code Rev.
Xxx. ss. 50-2-202 et seq.), and Worker' Compensation Retaliation (Tenn. Code
Rev. Xxx. ss. 50-6-114), or any other federal, state or municipal ordinance
relating to discrimination in employment; provided, however, that nothing in
this paragraph shall be construed to limit the ability of either party to xxx
for any act or omission which occurs subsequent to termination of the employment
relationship as it relates to the ADEA. Nothing contained herein shall restrict
the parties' rights to enforce the terms of this Release.
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(b) To the maximum extent permitted by law, Consultant agrees that he has
not filed, nor will he ever file, a lawsuit asserting any claims which are
released by this Release, or to accept any benefit from any lawsuit which might
be filed by another person or government entity based in whole or in part on any
event, act, or omission which is the subject of this Release.
(c) This Release specifically excludes any claim for vested benefits to
which the Consultant may be entitled under the Aluminum Group Retirement Plan,
the Noranda Aluminum Group Savings Plan, the Noranda Aluminum, Inc. Management
Supplemental Benefit Plan, and the Noranda Aluminum, Inc. and Participating
Subsidiaries Non-Qualified Deferred Compensation Plan, any welfare plan of
Parent, Noranda or any Affiliated Entity in which the Consultant participates
(the "Noranda Plans") or by application of any federal or state law providing
for the continuation of welfare benefits, including but not limited to,
continued coverage pursuant to Section 4980B of the Internal Revenue Code of
1986, as amended, or any state insurance conversion requirements. The
Consultant's entitlement to benefits under the Noranda Plans shall be determined
in accordance with the provisions of those Plans. This Release also specifically
excludes the Consultant's indemnification as an officer and employee of Parent,
Noranda or any Affiliated Entity.
(d) This Release specifically excludes any claim or obligation under the
Termination Agreement.
(e) Consultant represents that he is not aware of any facts or
circumstances that would give rise, based on his actions, to any claims or
lawsuits against Parent, Noranda or any Affiliated Entity.
(f) The parties agree that this Release shall not affect the rights and
responsibilities of the US Equal Employment Opportunity Commission (hereinafter
"EEOC") to enforce ADEA and other laws. In addition, the parties agree that this
Release shall not be used to justify interfering with the Consultant's protected
right to file a charge or participate in an investigation or proceeding
conducted by the EEOC. The parties further agree that the Consultant knowingly
and voluntarily waives all rights or claims (that arose prior to the
Consultant's execution of this Release) the Releasers may have against the
Releasees, or any of them, to receive any benefit or remedial relief (including,
but not limited to, reinstatement, back pay, front pay, damages, attorneys'
fees, experts' fees) as a consequence of any investigation or proceeding
conducted by the EEOC.
2. The Consultant acknowledges that Parent and Noranda has specifically
advised him of the right to seek the advice of an attorney concerning the terms
and conditions of this Release. The Consultant further acknowledges that he has
been furnished with a copy of this Release, and he has been afforded twenty-one
(21) days in which to consider the terms and conditions set forth above prior to
this Release. By executing this Release, the Consultant affirmatively states
that he has had sufficient and reasonable time to review this Release and to
consult with an attorney concerning his legal rights prior to the final
execution of this Release. The Consultant further agrees that he has carefully
read this Release and fully understands its terms. The Consultant understands
that he may revoke this Release within seven (7) days after signing this
Release. Revocation of this Release must be made in writing and must be received
by Xxxx Xxxxx, Vice President, Legal and Human Resources, Noranda Aluminum,
Inc., 000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 within the time
period set forth above.
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3. This Release will be governed by and construed in accordance with the
laws of the state of Delaware, without giving effect to any choice of law or
conflicting provision or rule (whether of the state of Delaware or any other
jurisdiction) that would cause the laws of any jurisdiction other than the state
of Delaware to be applied. In furtherance of the foregoing, the internal law of
the state of Delaware will control the interpretation and construction of this
agreement, even if under such jurisdiction's choice of law or conflict of law
analysis, the substantive law of some other jurisdiction would ordinarily apply.
The provisions of this Release are severable, and if any part or portion of it
is found to be unenforceable, the other paragraphs shall remain fully valid and
enforceable. This Release shall become effective and enforceable on the eighth
day following its execution by Consultant, provided he does not exercise his
right of revocation as described above. If Consultant fails to sign this Release
or revokes his signature, this Release will be without force or effect, and
Consultant shall not be entitled to the payments described in Sections 1(b) and
2 of the Termination Agreement.
I, XXXXXXX XXXXXXXX, HAVING READ THE FOREGOING RELEASE, UNDERSTANDING ITS
CONTENT AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL OF MY CHOICE, DO
HEREBY KNOWINGLY AND VOLUNTARILY SIGN THIS AGREEMENT, THEREBY WAIVING AND
RELEASING MY CLAIMS, ON OCTOBER 14, 2008.
/s/ Xxxxxxx Xxxxxxxx
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XXXXXXX XXXXXXXX
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ATTACHMENT B
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October 8, 2008
NOTICE OF TERMINATION OF EMPLOYMENT
Xxxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xxxx,
This letter will confirm our previous conversations in which we discussed the
fact that your employment with the company will be terminated. This letter
outlines the terms and conditions of your termination.
Notice Period
The Notice Period began with the date of notification of your employment
termination (Friday October 3, 2008) and ends with the last day of the month.
Therefore, your effective termination date will be October 31, 2008. After
October 31, 2008 you are not required to report to work regularly. Through the
notice period you will continue to receive your regular salary and benefits.
Severance
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In consideration of your position and service, an additional termination payment
equivalent to 104 weeks of pay less that which was paid during the Notice Period
will be made to you. Payment of these monies ($445,650) is conditional upon you
signing the Termination and Consulting Agreement and General Release. Payments
of severance and pay in lieu of notice will be subject to appropriate tax
withholdings.
The terms and conditions for payment of the severance benefit are fully
described in the attached Plan Document. Nevertheless, let me call to your
attention three important features of the Plan:
Your total severance benefit of $463,476 includes your pay during the
notice period, and
Severance benefits payments subsequent to the notice period will be
paid (a) as salary continuance for the remainder of the 2008 year, and
(b) the remainder will be paid in a lump sum payment on or about
January 15, 2009, and
Your eligibility for severance benefits is conditioned upon your
execution of the Termination and Consulting Agreement and General
Release in the term and within the time frame specified by the Plan
Administrator.
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Vacation
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Any unused annual vacation earned for 2008 will be paid to you on the first pay
following the termination date.
Incentive Pay
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You will be eligible for incentive pay on a pro-rata basis according to your
active service in 2008 and based on the terms of the 2008 Incentive Plan. Such
payment will be made to you at the time when such payments are normally paid to
active employees. Payment of these monies is also conditional upon signing the
Agreement and Release.
Benefit Plans
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Other than Long Term Disability, your participation in the US Benefits Program,
including life, medical, 401(k), pension, deferred compensation and other
coverages, will continue until October 31, 2008. Long Term Disability coverage
will cease on your last day in the office. Further information regarding your
rights under the U.S. benefit programs will be included in a letter to be
provided to you by the benefits department within the next 14 days.
COBRA Coverage
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If you choose to elect COBRA coverage pursuant to the Noranda Group Medical
Plan, and provided that you execute the attached Separation Agreement and
General Release, Noranda agrees to reimburse you for the cost of such COBRA
coverage for the period beginning November 1, 2008 and continuing for 18 months
or until you terminate your COBRA coverage, if earlier. Currently, based on your
2008 plan election, this amount will be $497.77/month.
Company Automobile
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You may continue to operate your company vehicle until the lease expiration in
May 2009.
During the period in which you continue to operate the vehicle, as described
above, the company will continue to reimburse you for the cost of normal
maintenance and repairs and licensing and registration fees. In addition, the
company will continue to provide insurance coverage under the same terms and
conditions as existed when you were actively employed. At the end of the period
of operation of the vehicle, as described above, you may elect to purchase the
vehicle at its book value.
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Company Equipment, Material and Files
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You currently have a company cellular phone and cellular phone service and/or a
PDA. Please make arrangements with Xxxx Xxxxx to return your company cellular
phone and laptop computer to the company not later than October 31, 2008.
Access to e-mail, the Noranda network and voicemail will cease when you return
the equipment described above but in no event later than October 31, 2008.
Please return security passes, credit cards, and any other company materials and
equipment that you have in your possession not later than October 31, 2008.
Expense Reports
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Please submit any outstanding expense reports to Xxx Xxxxx by November 15, 2008.
Release Requirement
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Please review this letter and return a completed, signed copy of the attached
Termination and Consulting Agreement and General Release to the Vice President
Human Resources, Noranda Aluminum prior to October 29, 2008. If this Release is
not executed and returned within the specified time, and if the Company has not
agreed, in writing, to extend the date for return, then the Company will pay to
you any amounts as required by applicable statutes and regulations and may at
its sole discretion revoke, in writing, any other terms and conditions of
compensation in excess of that required by said statutes and regulations.
Should you have any question about the contents of this letter or the attached
Exhibits please direct them to Xxxx Xxxxx.
Thank you for your service to Noranda Aluminum.
I wish you the best in all your future endeavors.
Very truly yours,
Xxx Xxxxx
President and CEO
Noranda Aluminum, Inc.
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