CENTURY ALUMINUM COMPANY LONG-TERM INCENTIVE PLAN PERFORMANCE UNIT AWARD AGREEMENT
Exhibit
10.4
CENTURY
ALUMINUM COMPANY
LONG-TERM
INCENTIVE PLAN
This
Agreement is made as of January 1, 2008, (the “Award Date”), between CENTURY
ALUMINUM COMPANY (the “Company”) and _________ (“Participant”).
WITNESSETH:
WHEREAS,
the Company has adopted the Century Aluminum Company Long-Term Incentive Plan
(the “LTIP”) authorizing the grant of awards of Performance Units to eligible
individuals in connection with the performance of services for the Company and
its Subsidiaries (as defined in the LTIP). The LTIP, including the
definition of terms, is incorporated in this Agreement by reference and made a
part of it. In the event of any conflict among the provisions of the
LTIP document and this Agreement, the LTIP document shall prevail;
and
WHEREAS,
the Company regards Participant as a valuable contributor to the Company, and
has determined that it would be to the advantage and interest of the Company and
its shareholders to award to Participant the Performance Units provided for in
this Agreement, subject to conditions specified in this Agreement, as an
inducement to remain in the service of the Company or its Subsidiaries and as an
incentive for increased efforts during such service;
NOW,
THEREFORE, in consideration of the foregoing premises, and the mutual covenants
herein contained, the parties to this Agreement hereby agree as
follows:
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1.
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Performance
Units.
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(a)
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Target
Award. The Company hereby awards to Participant ______
Performance Units as a Target Award for the Plan Period extending from
January 1, 2008
through December 31, 2010 (the “Plan
Period”).
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(b)
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Earned Performance
Unit Award. The number of Performance Units actually
earned will be based on the Performance Goals established for the Plan
Period under the LTIP.
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The
maximum Earned Performance Unit Award is two times the Target
Award.
The
Committee has full and complete discretion to determine the extent to which
performance has been achieved, and the Committee shall have full and complete
discretion, in light of considerations deemed appropriate by the Committee, to
modify, with input from the Chief Executive Officer, any Earned Performance Unit
Award to increase or decrease the amount otherwise payable
hereunder. This discretion shall include the right to make
adjustments to the Performance Goal Objectives and/or actual results, to
determine that an Earned Performance Unit Award shall be zero, to determine that
an Earned Performance Unit Award exceeds the number of Performance Units
actually earned for a Plan Period, and to provide for payment of an earned
Performance Unit Award in an amount greater than 200% of the Target
Award.
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(c)
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Value and Payment of
Earned Performance Unit Awards. The value payable to
Participant for an Earned Performance Unit Award shall equal $1 for each
Performance Unit actually earned. Payment shall be made during
the calendar year that begins immediately after the end of the Plan
Period.
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(d)
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Termination of
Employment. Termination of employment with the Company
and its Subsidiaries prior to the end of the Plan Period for any reason
other than death, Disability, Retirement, Termination Other than for
Cause, or other reason approved by the Committee shall result in
forfeiture of all opportunity to receive an Earned Performance Unit
Award. A pro-rated portion of an Earned Performance Unit Award
will be paid if employment with the Company and its Subsidiaries is
terminated prior to the end of the Plan Period due to death, Disability,
Retirement, Termination Other than for Cause, or other reason approved by
the Committee. The pro-rated portion shall be determined by
multiplying the Earned Performance Unit Award by a fraction, the numerator
of which is the number of weeks of full employment by the Company or a
Subsidiary during such Plan Period and the denominator of which is
156. Payment of such a pro-rated Earned Performance Unit
Award will be made during the calendar year that begins immediately after
the end of the Plan Period.
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2.
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Change of
Control. Notwithstanding anything to the contrary in
this Agreement, upon a Change of Control of the Company, all Performance
Units outstanding hereunder shall vest and become payable in an amount
equal to the Target Award, or a multiple of up to 200% of the Target Award
as may be determined by the Committee in light of considerations deemed
appropriate by the Committee. Payment of vested Performance
Units shall be made as soon as practicable but not later than 2-1/2 months
after the Change of Control (or within such other time period as may be
required under Section 409A); provided, however, that payment of the
Performance Units shall not be accelerated unless the Change of Control
satisfies the requirements for a change in the ownership or effective
control of the Company, or a change in the ownership of a substantial
portion of the assets of the Company, under Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) as determined pursuant to
Treasury Regulations or other applicable guidance issued under Section
409A. Notwithstanding the provisions of Section 10, the acceleration of
vesting of Performance Units pursuant to the LTIP and this provision shall
not supersede, and shall be subject to, such greater rights as Participant
may be entitled to under any severance protection or other agreement with
the Company.
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3.
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Designation of
Beneficiaries. On a form provided to the Company,
Participant may designate a beneficiary or beneficiaries to receive, in
the event of Participant’s death, all or part of any amounts to be
distributed to Participant under the
Agreement.
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4.
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Data
Privacy. Participant hereby acknowledges that to perform
its requirements under the LTIP, the Company and its Subsidiaries may
process sensitive personal data about Participant. Such data
include but are not limited to the information provided above and any
changes thereto and other appropriate personal and financial data about
Participant. Participant hereby gives explicit consent to the
Company to process any such personal data and/or sensitive personal
data. The legal persons for whom such personal data are
intended are the Company and any of its Subsidiaries and representatives,
including consultants. Participant has been informed of his/her right of
access and correction to his/her personal data by applying to the
Company's director of human
resources.
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5.
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Employee
Rights. Participant may not assign or transfer his or
her rights under the Agreement except as expressly provided under the
LTIP. The Agreement does not create a contract of employment
between Participant and the Company or any of its Subsidiaries, and does
not give Participant the right to be retained in the employment of the
Company or any of its Subsidiaries; nor does it imply or confer any other
employment rights, or confer any ownership, security or other rights to
Company assets. The LTIP Award provided herein is solely within
the discretion of the Company, is not intended to constitute a part of
Participant’s wages, ongoing or otherwise, and no inference should be
drawn or permitted that the grant herein suggests Participant will receive
any subsequent grants. If any subsequent grant is in fact made, it shall
be in the sole discretion of the Company and the Company is under no
obligation to make any future grant or to consider making any future
grant. The value of the Performance Units awarded under the
Agreement (either on the date of LTIP Award or at the time of vesting)
shall not be included as compensation or earnings for purposes of any
other benefit plan offered by the
Company.
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6.
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Recoupment. The
LTIP Award provided under the Agreement shall be subject to recoupment by
the Company under and in accordance with the provisions of any Incentive
Compensation Recoupment Policy that may be adopted by the Board from time
to time.
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7.
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Delaware
Law. This Agreement and all related matters shall be
governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, and any applicable federal law. The
invalidity or illegality of any provision herein shall not be deemed to
affect the validity of any other
provision.
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8.
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Section
409A. Participant acknowledges that Participant’s
receipt of certain benefits under this Agreement otherwise payable upon
termination of employment may be subject to Section 409A of the
Code. If the Company determines that the Participant is a
“specified employee” (as defined under Section 409A) at the time of
termination of employment, payment shall be delayed until six months and
one day following termination of employment if the Company determines that
such delayed payment is required in order to avoid a prohibited
distribution under Section 409A(a)(2) of the Code. In addition, to the
extent that Participant’s benefits under this Agreement are payable upon a
termination of employment and are subject to Section 409A, a “termination
of employment” shall be interpreted to mean a “separation from service”
which qualifies as a permitted payment event under Section 409A of the
Code.
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9.
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Withholding. The
Company and its Subsidiaries shall have the right to deduct from any
payments of any kind due to the recipient hereunder, or to otherwise
require payment by the recipient, of the amount of any federal, state or
local taxes required by law to be withheld with respect to the amounts
earned under the Agreement. The Company is not responsible for
any tax consequences to Participant relating to the
Agreement. Participant alone is responsible for these tax
obligations, and hereby agrees to indemnify the Company from any loss or
liability it suffers as a result of the failure by Participant to pay such
tax obligations
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10.
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Entire
Agreement. The LTIP and this Agreement constitute the
entire agreement between the Company and Participant pertaining to the
subject matter hereof, supersedes all prior or contemporaneous written or
verbal agreements and understandings between the parties in connection
therewith, and shall not be modified or amended except by written
instrument duly signed by the parties. No waiver by either
party of any default under the Agreement shall be deemed a waiver of any
later default. The various provisions of the Agreement are
severable in their entirety. Any determination of invalidity or
unenforceability of any one provision shall have no effect on the
continuing force and effect of the remaining provision. The
Committee shall have the sole and complete authority and discretion to
decide any questions concerning the application, interpretation or scope
of any of the terms and conditions of the Agreement, and its decisions
shall be binding and conclusive upon all interested
parties. This Agreement shall be binding upon and inure to the
benefit of the successors, assigns and heirs of the respective
parties.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Performance Unit
Award Agreement as of the date first above written. The Participant
also hereby acknowledges receipt of a copy of the Century Aluminum Company
Long-Term Incentive Plan.
Century
Aluminum Company
By
________________________
Name,
Title
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Participant
Signature
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Participant
Printed
Name
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