CENTURY ALUMINUM COMPANY LONG-TERM INCENTIVE PLAN TIME-VESTING PERFORMANCE SHARE UNIT AWARD AGREEMENT
Exhibit
10.3
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 Time-vesting Performance Share
Units pursuant to the Company’s Amended and Restated 1996 Stock Incentive Plan
(the “Stock Incentive Plan”) 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, and the Stock
Incentive Plan are incorporated in this Agreement by reference and made a part
of it. In the event of any conflict among the provisions of the LTIP
or Stock Incentive Plan documents and this Agreement, the LTIP and Stock
Incentive Plan documents 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 stockholders to award to Participant the Time-vesting Performance Share
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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Time-vesting
Performance Share Units.
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(a)
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Award. The
Company hereby awards to Participant ______ Time-vesting Performance Share
Units pursuant to, and subject to all of the terms and provisions of the
Company’s Stock Incentive Plan, for the Plan
Period.
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(b)
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Vesting and
Payment. The Time-vesting Performance Share Units will
vest in full upon the last day of the Plan Period or, if earlier, upon the
Participant’s termination of employment with the Company and
its Subsidiaries due to death, Disability , Termination Other than for
Cause, or other reason approved by the Committee. Upon a
Participant’s termination of employment by the Company or a Subsidiary due
to Retirement, Time-vesting Performance Share Units granted to a
Participant shall vest pro rata based on the number of months of the Plan
Period which have passed prior to such termination, or in such greater
amount as may be determined by the Committee in its sole discretion. The
vested Time-vesting Performance Share Units will be settled for an
equivalent number of shares of common stock of the Company as soon as
practicable but no later than 2-1/2 months after the date of vesting;
provided, however, that if the Time-vesting Performance Share Units vest
upon Retirement, the Time-vesting Performance Share Units shall be settled
within 2-1/2 months after the last day of the Plan
Period. Participant shall forfeit all opportunity to vest
in or receive payment for the Time-vesting Performance Share Units upon a
termination of employment with the Company and its Subsidiaries prior to
the last day of the Plan Period for any reason other than death,
Disability, Retirement, Termination Other than for Cause, or other reason
approved by the Committee.
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2.
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Change of
Control. Notwithstanding anything to the contrary in
this Agreement (but subject to the following sentence), upon a Change of
Control of the Company, the Time-vesting Performance Share Units shall
vest pursuant to the provisions of the Stock Incentive Plan and shall be
settled 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). Notwithstanding the preceding sentence,
the settlement of the Time-vesting Performance Share 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 13, the acceleration of vesting of Time-vesting
Performance Share Units pursuant to the Stock Incentive Plan, 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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Change in Common Stock
or Corporate Structure. Upon any stock dividend, stock
split, combination or exchange of shares of common stock, recapitalization
or other change in the capital structure of the Company, corporate
separation or division (including, but not limited to, split-up, spin-off
or distribution to Company stockholders other than a normal cash
dividend), sale by the Company of all or a substantial portion of its
assets, rights offering, merger, consolidation, reorganization or partial
or complete liquidation, or any other corporate transaction or event
having an effect similar to any of the foregoing, the number of
Time-vesting Performance Share Units subject to the LTIP Award granted
hereunder shall be equitably and appropriately adjusted, and the
securities subject to the Time-vesting Performance Share Units shall be
equitably and appropriately substituted for new securities or other
consideration, as determined by the Committee in accordance
with the provisions of the Stock Incentive Plan. Any such
adjustment made by the Committee shall be conclusive and binding upon the
Participant, the Company and all other interested
persons.
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4.
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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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5.
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Stock
Certificates. Upon the settlement of the Time-vesting
Performance Share Units (and subject to payment by Participant of all
applicable withholding taxes pursuant to Section 11), the Company shall
cause a stock certificate to be delivered or book entry to be made
covering the appropriate number of shares registered on the Company's
books in the name of Participant. All Time-vesting Performance
Share Units which are issued under this Agreement shall be fully paid and
non-assessable.
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6.
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Voting,
Dividends. Participant shall have no rights as a
stockholder (including no rights to vote or receive dividends or
distributions) with respect to any Time-vesting Performance Share Units
until Participant becomes a stockholder upon the settlement of such
Time-vesting Performance Share Units in accordance with the terms and
provisions of the Agreement and the Stock Incentive
Plan. Notwithstanding the foregoing, Participant will be
entitled to receive dividend equivalents with respect to the Time-vesting
Performance Share Units as provided in this Section 6. Upon an
ordinary cash dividend on the shares of common stock of the Company the
record date of which is prior to the settlement or forfeiture of any
Time-vesting Performance Share Units, the Company shall allocate for
Participant an amount equal to the amount of such ordinary cash dividend
multiplied by the number of Time-vesting Performance Share Units, and the
Company shall pay immediately to Participant any such amounts upon the
vesting and settlement of the corresponding Time-vesting Performance Share
Units, provided that any rights to receive such amounts shall be forfeited
upon the forfeiture of the corresponding Time-vesting Performance Share
Units.
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7.
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Data
Privacy. Participant hereby acknowledges that to perform
its requirements under the LTIP and the Stock Incentive Plan, 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 stock brokers, stock record
keepers or other 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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8.
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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
Stock Incentive Plan. 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
Time-vesting Performance Share 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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9.
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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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10.
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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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11.
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Section
409A. Participant acknowledges that Participant’s
receipt of certain benefits under this Agreement 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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12.
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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. In addition, subject to and in
accordance with the provisions of the Stock Incentive Plan and the
approval of the Company, the Participant may elect to satisfy the
withholding requirement with respect to the Time-vesting Performance Share
Units by authorizing and directing the Company to withhold shares of
common stock of the Company having a fair market value equal to the
minimum required statutory withholding amount with respect thereto, in
accordance with such procedures as the Company may provide. 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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13.
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Entire Agreement;
Interpretation; Amendment. The LTIP, Stock Incentive
Plan 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 Time-vesting
Performance Share 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 and the Century
Aluminum Company Amended and Restated 1996 Stock Incentive Plan.
| Century Aluminum Company | |
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By
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Name,
Title
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Participant
Signature
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Participant
Printed
Name
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