EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 23 day of January, 2006, by and
between Century Aluminum Company, a Delaware corporation (the "Company"), and
Xxxxxxx X. Bless (the "Executive").
RECITALS
A. The Company desires to employ Executive as its Executive Vice President
and Chief Financial Officer; and
B. Executive is willing to accept such employment on the terms and
conditions set forth in this Agreement.
THE PARTIES AGREE as follows:
1.1 Position and Term of Employment. Executive's employment hereunder shall
commence as of January 23, 2006, and shall end December 31, 2008, unless
terminated sooner pursuant to Section 7 of this Agreement or extended by the
mutual agreement of the parties. Executive shall be employed as the Executive
Vice President and Chief Financial Officer of the Company and shall devote his
full business time, skill, attention and best efforts in carrying out his duties
and promoting the best interests of the Company. Executive shall also serve as a
director and/or officer of one or more of the Company's subsidiaries as may be
requested from time to time by the Board of Directors. Subject always to the
instructions and control of the Board of Directors of the Company, Executive
shall report to the Chief Executive Officer of the Company and
shall be responsible for the day to day financial affairs of the company and for
the development of the Company's short and long term financial plans.
Executive shall not at any time while employed by the Company or any of its
affiliates (as defined in the Severance Protection Agreement between the Company
and Executive dated as of January 23, 2006, (the "SPA"), incorporated in this
Agreement by this reference), without the prior consent of the Board of
Directors, knowingly acquire any financial interests, directly or indirectly, in
or perform any services for or on behalf of any business, person or enterprise
which undertakes any business in substantial competition with the business of
the Company and its affiliates or sells to or buys from or otherwise transacts
business with the Company and its affiliates; provided that Executive may
acquire and own a de minimus amount of the outstanding capital stock of any
public corporation which sells or buys from or otherwise transacts business with
the Company and its affiliates.
2.1 Base Salary.
(a) (i) Effective as of January 23, 2006, Executive shall be paid an
initial salary at the monthly rate of $31,250, which shall be paid in accordance
with the Company's normal payroll practice with respect to salaried employees,
subject to applicable payroll taxes and deductions (the "Base Salary").
Executive's Base Salary shall be subject to review and possible change in
accordance with the usual practices and policies of the Company. However,
Executive's base annual salary shall not be reduced to less than $375,000.
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(ii) If for any reason other than Executive's voluntary
resignation, his death, or termination for cause pursuant to Section 7(c),
Executive does not continue to be employed by the Company, Executive shall
continue to receive an amount equal to his then current Base Salary plus an
annual performance bonus equal to the highest annual bonus payment Executive has
received in the previous three years ("Highest Annual Bonus") for the then
remaining balance of the term of this Agreement. In no event shall such payment
be less than one year's Base Salary plus Highest Annual Bonus. The foregoing
amounts shall be paid to Executive over the remaining term of this Agreement or
one year (whichever is applicable) in accordance with the Company's payroll and
bonus payment policies. Notwithstanding the foregoing, no payments under this
subparagraph (ii) shall be made if the Company makes all payments to Executive
required to be made, if any, under the SPA in the event of a Change in Control
(as defined in the SPA).
(b) If Executive resigns voluntarily or ceases to be employed by
reason of his death or by the Company (or any affiliate) for cause as described
in Section 7(c) of this Agreement, all benefits described in Sections 2 and 4
hereof shall terminate (except to the extent previously earned or vested).
(c) If Executive's employment shall have been terminated as a result
of Executive's disability pursuant to Section 7(b), the Company shall pay in
equal monthly installments for the then remaining balance of the term of this
Agreement or one year, whichever is greater, to Executive (or his beneficiaries
or personal representatives, as the case may be) disability benefits at a rate
per annum equal to one hundred percent (100%) of his then current Base Salary,
plus amounts equal to the Highest Annual
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Bonus, less payments and benefits, if any, received under any disability plan or
insurance provided by the Company and less any "sick leave" payments received
from the Company for the applicable period.
2.2 Bonuses. Executive shall be eligible for an annual performance bonus in
amounts between 0 and 100 percent of his Base Salary based upon his individual
performance and achievement by the Company of overall objectives as determined
by the compensation committee of the Board of Directors ("Compensation
Committee"). The target range for Executive's performance bonus will be between
35% and 100% of his base salary. The Company agrees that Executive shall be
entitled to receive a cash bonus of not less than $187,500 for his services for
the full year 2006, which shall be payable in the 2007 calendar year.
2.3 Expenses. The Company shall pay or reimburse Executive in accordance
with the Company's normal practices any travel, hotel and other expenses or
disbursements reasonably incurred or paid by Executive hereunder in connection
with the services performed by Executive, in each case upon presentation by
Executive of itemized accounts of such expenditures or such other supporting
information as the Company may require.
2.4 Relocation; Housing. The Company shall pay for all reasonable and
customary relocation expenses to Monterey, California, as set forth in the
Relocation Policy attached to this Agreement.
3.1 Incentive Plan. Executive shall be eligible for option grants and
performance share unit awards under the Company's Amended and Restated 1996
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Stock Incentive Plan (the "Plan"), and the Guidelines adopted to implement the
Plan. Upon approval by the Compensation Committee, the Company shall grant
Executive options to purchase 30,000 shares of Company stock at an exercise
price based on the price of the stock on the trading day immediately preceding
the start date ("Start Date") of his employment, determined in accordance with
the Plan and pursuant to a stock option award agreement. The options would vest
one-third on the Start Date, one-third on the one year anniversary of the Start
Date, and one-third on the day preceding the two year anniversary of the Start
Date. In addition the Compensation Committee shall be asked to approve a grant
of 20,000 restricted stock shares, which grant will vest one-third on the day
preceding the one year anniversary of the Start Date, one-third on the day
preceding the two year anniversary of the Start Date, and one-third on the day
preceding the three year anniversary of the Start Date.
3.2 Effect of Termination of Employment or Change in Control.
(a) If Executive shall resign voluntarily or cease to be employed by
the Company (or an affiliate) for cause as described in Section 7(c) of this
Agreement, except as provided in the SPA, all benefits described in Section 3
hereof shall terminate (except to the extent previously earned or vested and, if
Executive retires, those which may become vested upon retirement pursuant to the
terms of the Guidelines).
(b) If Executive dies or becomes disabled, all options which have not
vested will accelerate and vest immediately, and, in the event of Executive's
death, all option rights will transfer to Executive's representative. If
Executive's employment terminates by reason of death or disability, Executive or
Executive's representative may
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exercise all unexercised options within three years after such death or
disability or the expiration date of the option, whichever is sooner.
(c) If Executive dies, becomes disabled or retires, performance shares
awarded to such Executive pursuant to the Guidelines shall immediately vest, but
be valued and awarded at the times and in the manner awarded to other plan
participants pursuant to the terms of such Guidelines.
(d) If there is a Change in Control, then all options and performance
shares that have not vested will accelerate and vest immediately. Performance
shares awarded to Executive pursuant to the Guidelines shall be valued at 100
percent as though the Company had achieved its target for each relevant plan
period. The Executive shall be entitled to receive one share of the Company's
common stock upon the vesting of each Performance Share. Upon a Change in
Control, the Executive shall have the right to require the Company to purchase,
for cash, and at fair market value, any shares of stock purchased upon exercise
of any option or received upon the vesting of any Performance Share. (Terms used
in this Section, unless defined in this Employment Agreement, are as defined in
the SPA.)
4.1 Other Benefits. Executive shall be entitled to participate in life,
medical, dental, hospitalization, disability and life insurance benefit plans
made available by the Company to its senior executives and shall also be
eligible to participate in existing retirement or pension plans offered by the
Company to its senior executives, but, except as otherwise provided in Section
4.2, subject in each case to the terms and requirements of each such plan or
program; and
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4.2 Pension Benefits. Executive shall be entitled to receive retirement
benefits as follows:
(a) Qualified Plan Benefits. The Executive shall be entitled to
receive, upon his retirement as provided for in the Company's Employees'
Retirement Plan (the "Qualified Plan"), payments under the Qualified Plan
computed as set forth in that plan.
(b) Supplemental Executive Retirement Benefits. In addition to
payments the Executive is entitled to receive under the Qualified Plan,
Executive also shall be entitled to receive Supplemental Executive Benefits as
set forth in this Agreement and in the SERB Plan, which benefits are an amount
equal to the difference between the amount Executive would receive under the
Qualified Plan and the amount he would be entitled to receive had his benefit
under the Qualified Plan not been subject to the limitations on benefits and
contributions set forth in Sections 401 (a)(17) and 415 of the Internal Revenue
Code of 1986, as at any time amended, and the regulations thereunder.
(c) Vesting. The Qualified Plan Benefits and the Supplemental
Retirement Benefit described in Section 4.2 (b) shall be fully vested as of the
date of this Agreement. Upon the termination of Executive's employment he shall
be entitled to receive all such benefits as provided in Section 4.2 (d).
(d) Time and Method of Payment of Benefits. Benefit payments under the
SERB Plan shall be made to Executive in the same manner as provided under the
Qualified Plans. Except as otherwise provided in the Qualified Plans, no
benefits shall be payable hereunder prior to death, disability or termination of
employment.
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(e) Prohibition on Assignment. Other than pursuant to the laws of
descent and distribution, Executive's right to benefit payments under this
Section 4.2 are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or garnishment by
creditors of Executive or Executive's beneficiary.
(f) Source of Payments. Subject to Section 10 of the SERB Plan
("Section 10"), all benefits under this Section 4.2 shall be paid in cash from
the general funds of the Company, and, except as set forth below, no special or
separate fund shall be established or other segregation of assets made to assure
such payments; provided, however, that the Company may establish a bookkeeping
reserve to meet its obligations hereunder. It is the intention of the parties
that the arrangements be unfunded for tax purposes and for purposes of Title I
of the Employee Retirement Income Security Act of 1974. In the event of a
possible Change in Control, and before a Change in Control occurs, the Company
shall contribute to the Trust described in Section 10, and in the manner
described therein, those amounts necessary to cause the present value of the
Trust assets to be no less than the present value of the future benefits payable
under the SERB Plan.
(g) Executive's Status. Executive shall have the status of a general
unsecured creditor of the Company, and the SERB Plan shall constitute a mere
promise to make benefit payments in the future.
(h) Survival of Benefit. The Supplemental Retirement benefits
described in this Section 4.2 shall not be reduced during the term of this
Agreement or
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thereafter, and Executive's rights with respect to these benefits shall survive
any termination (or non-renewal) of this Agreement, including, without
limitation, a termination pursuant to Section 7(c), or any amendment or
termination of the SERB Plan, to the full extent necessary to protect the
interests of Executive under this Agreement and under the terms of the SERB
Plan.
5. Confidential Information. Except as specifically permitted by this
Section 5, and except as required in the course of his employment with the
Company, while in the employ of the Company or thereafter, Executive will not
communicate or divulge to or use for the benefit of himself or any other person,
firm, association, or corporation without the prior written consent of the
Company, any Confidential Information (as defined herein) owned, or used by the
Company or any of its affiliates that may be communicated to, acquired by or
learned of by Executive in the course of, or as a result of, Executive's
employment with the Company or any of its affiliates. All Confidential
Information relating to the business of the Company or any of its affiliates
which Executive shall use or prepare or come into contact with shall become and
remain the sole property of the Company or its affiliates.
"Confidential Information" means information not generally known about the
Company and its affiliates, services and products, whether written or not,
including information relating to research, development, purchasing, marketing
plans, computer software or programs, any copyrightable material, trade secrets
and proprietary information, including, but not limited to, customer lists.
Executive may disclose Confidential Information to the extent it (i)
becomes part of the public domain otherwise than as a result of Executive's
breach hereof or (ii) is
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required to be disclosed by law. If Executive is required by applicable law or
regulation or by legal process to disclose any Confidential Information,
Executive will provide the Company with prompt notice thereof so as to enable
the Company to seek an appropriate protective order.
Upon request by the Company, Executive agrees to deliver to the Company at
the termination of Executive's employment, or at such other times as the Company
may request, all memoranda, notes, plans, records, reports and other documents
(and all copies thereof) containing Confidential Information that Executive may
then possess or have under his control.
6. Assignment of Patents and Copyrights. Executive shall assign to the
Company all inventions and improvements within the existing or contemplated
scope of the Company's business made by Executive while in the Company's employ,
together with any such patents or copyrights as may be obtained thereon, both
domestic and foreign. Upon request by the Company and at the Company's expense,
Executive will at any time during his employment with the Company and after
termination regardless of the reason therefore, execute all proper papers for
use in applying for, obtaining and maintaining such domestic and foreign patents
and/or copyrights as the Company may desire, and will execute and deliver all
proper assignments therefore.
7. Termination.
(a) This Agreement shall terminate upon Executive's death.
(b) The Company may terminate Executive's employment hereunder upon
fifteen (15) days' written notice if in the opinion of the Board of Directors,
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Executive's physical or mental disability has continued or is expected to
continue for one hundred and eighty (180) consecutive days and as a result
thereof, Executive will be unable to continue the proper performance of his
duties hereunder. For the purpose of determining disability, Executive agrees to
submit to such reasonable physical and mental examinations, if any, as the Board
of Directors may request and hereby authorizes the examining person to disclose
his findings to the Board of Directors of the Company.
(c) The Company may terminate Executive's employment hereunder "for
cause" (as hereinafter defined). If Executive's employment is terminated for
cause, Executive's salary and all other rights not then vested under this
Agreement shall terminate upon written notice of termination being given to
Executive. As used herein, the term "for cause" means the occurrence of any of
the following:
(i) Executive's disregard of a direct, material order of the
Board of Directors of the Company, the substance of which order is (a) a proper
duty of Executive pursuant to this Agreement, (b) permitted by law and (c)
otherwise permitted by this Agreement, which disregard continues after fifteen
(15) days' opportunity and failure to cure; or
(ii) Executive's conviction for a felony or any crime involving
moral turpitude.
8. Additional Remedies. Executive recognizes that irreparable injury will
result to the Company and to its business and properties in the event of any
breach by Executive of the non-compete provisions of Section 1, the
confidentiality provisions
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of Section 5 or the assignment provisions of Section 6 and that Executive's
continued employment is predicated on the covenants made by him pursuant to such
Sections. In the event of any breach by Executive of his obligations under said
provisions, the Company shall be entitled, in addition to any other remedies and
damages available, to injunctive relief to restrain any such breach by Executive
or by any person or persons acting for or with Executive in any capacity
whatsoever and other equitable relief.
9. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by Executive and the Company and their
respective legal representatives, successors and assigns. Neither this Agreement
nor any of the duties or obligations hereunder shall be assignable by Executive.
10. Governing Law; Jurisdiction. This Agreement shall be interpreted and
construed in accordance with the laws of the State of California. Each of the
Company and Executive consents to the jurisdiction of any state or federal court
sitting in California, in any action or proceeding arising out of or relating to
this Agreement.
11. Headings. The paragraph headings used in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any purpose or in any way affect the interpretation of this Agreement.
12. Severability. If any provision, paragraph or subparagraph of this
Agreement is adjudged by any court to be void or unenforceable in whole or in
part, this adjudication shall not affect the validity of the remainder of this
Agreement.
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13. Complete Agreement. This Agreement and the SPA embody the complete
agreement and understanding among the parties, written or oral, which may have
related to the subject matter hereof in any way and neither shall be amended
orally, but only by the mutual agreement of the parties in writing, specifically
referencing this Agreement or the SPA, as the case may be. To the extent there
is an inconsistency between the terms of this Agreement and the terms of the
SPA, the Agreement which provides terms most favorable to the Executive shall
govern.
14. Counterparts. This Agreement may be executed in one or more separate
counterparts, all of which taken together shall constitute one and the same
Agreement.
CENTURY ALUMINUM COMPANY
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Bless
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Title: President and Chief Executive Xxxxxxx X. Bless
Officer
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