AMENDMENT NUMBER 2 TO EMPLOYMENT AGREEMENT
AMENDMENT
NUMBER 2 TO EMPLOYMENT AGREEMENT
THIS
AMENDMENT NUMBER 2 to EMPLOYMENT AGREEMENT (this “Amendment No. 2”) is made as
of December 1, 2008, by
and between Century Aluminum Company, a Delaware corporation (the “Company”),
and Xxxxx Xxxx (the “Executive”).
RECITALS
A. The Company and the
Executive are parties to an Employment Agreement, made as of March 1, 2007, and
amended as of August 30, 2007 (collectively, the “Agreement”).
B. The Company and the
Executive desire to amend certain provisions of the Agreement to comply with
Section 409A of the Internal Revenue Code of 1986, as amended, effective as of
the effective date of the Agreement (the “Effective Date”).
THE
PARTIES AGREE AS FOLLOWS:
1. Section
409A. The Agreement is amended to add the following new
Section 15 at the end thereof, effective on the Effective Date:
“15. Section 409A.
(a) To
the fullest extent applicable, amounts and other benefits payable under this
Agreement are intended to be exempt from the definition of “nonqualified
deferred compensation” under Section 409A of the Code in accordance with one or
more of the exemptions available under the Treasury regulations promulgated
under Section 409A. In this regard, each such payment that is made in
a series of scheduled installments shall be deemed a separate payment for
purposes of Section 409A.
(b) To
the extent that any amounts or benefits payable under this Agreement are or
become subject to Section 409A due to a failure to qualify for an exemption from
the definition of nonqualified deferred compensation under Section 409A, this
Agreement is intended to comply with the applicable requirements of Section 409A
with respect to such amounts or benefits. This Agreement shall be
interpreted and administered to the extent possible in a manner consistent with
the foregoing statement of intent.
(c) Notwithstanding
anything in this Agreement or elsewhere to the contrary, if the Executive is a
“Specified Employee” (within the meaning of Section 409A(a)(2)(B)(i) of the
Code, as determined by the Company’s Compensation Committee) on the date of his
termination of employment, and the Company reasonably determines that any amount
or other benefit payable under this Agreement on account of the Executive’s
separation from service, within the meaning of Section 409A(a)(2)(A)(i) of the
Code, constitutes nonqualified deferred compensation that will violate the
requirements of Section 409A(a)(2) if paid at the time specified in the
Agreement, then the payment thereof shall be postponed to and paid on the first
business day of the seventh month following the date of termination or, if
earlier, the date of the Executive’s death (the “Delayed Payment Date”), and the
remaining amounts or benefits shall be paid at the times otherwise provided
under the Agreement. The Company and the Executive may agree to take other
actions to avoid a violation of Section 409A at such time and in such manner as
permitted under Section 409A. If this Section 15(c) requires a delay
of any payment, such payment shall be accumulated and paid in a single lump sum
on the Delayed Payment Date together with interest for the period of delay,
compounded monthly, equal to the prime rate as set forth in the Eastern edition
of the Wall Street Journal on the date of termination. If a benefit subject to
the delayed payment rules of this Section 15(c) is to be provided other than by
the payment of money to the Executive, then the provision of such benefit prior
to the Delayed Payment Date is conditioned on pre-payment by the Executive to
the Company of the full taxable value of the benefit and following the Delayed
Payment Date, the Company shall repay the Executive for the payments made by the
Executive pursuant to the terms of this sentence which would otherwise not have
been required of the Executive.
(d) The
Executive’s date of termination for purposes of determining the date that any
payment or benefit that is treated as nonqualified deferred compensation under
Code Section 409A is to be paid or provided (or in determining whether an
exemption to such treatment applies), and for purposes of determining whether
the Executive is a “Specified Employee” on the date of termination, shall be the
date on which the Executive has incurred a “separation from service” within the
meaning of Section 409A(a)(2)(A)(i) and applicable guidance
thereunder.
(e) Notwithstanding
any provision of this Agreement to the contrary, the time of payment of any
performance shares that are subject to Section 409A as “nonqualified deferred
compensation” and that vest pursuant to this Agreement shall not be accelerated
unless such acceleration complies with the requirements of Section 409A of the
Code, as determined pursuant to applicable guidance issued
thereunder. If the payment of vested performance shares cannot be
accelerated pursuant to this provision, payment shall include interest for the
period of delay, compounded monthly, equal to the prime rate as set forth in the
Eastern edition of the Wall Street Journal on the date when payment of the
vested performance shares would otherwise have been made.
(f) Notwithstanding
any provision of this Agreement to the contrary, to the extent the Company is
required pursuant to this Agreement to reimburse expenses incurred by the
Executive, and such reimbursement obligation is subject to Section 409A of the
Code, the Company shall reimburse any such eligible expenses by the end of the
calendar year next following the calendar year in which the expense was
incurred, subject to any earlier required deadline for payment otherwise
applicable under this Agreement; provided, however, that the following sentence
shall apply to any tax gross-up payment (if applicable) to the extent subject to
Section 409A. Any such tax gross-up payment will be made by the end
of the calendar year next following the calendar year in which the Executive
remits the related taxes.
(g) Notwithstanding
any provision of this Agreement to the contrary, if Executive becomes entitled
to the payment of severance benefits pursuant to this Agreement upon termination
of employment as a result of Executive’s disability, the Company shall pay such
disability benefits in accordance with the Company’s payroll policy (whether or
not such payroll is monthly) for the period otherwise specified under this
Agreement.
(h) Notwithstanding
any provision of this Agreement to the contrary, benefit payments under the SERB
Plan shall be made to Executive in the manner provided under the SERB Plan, as
amended by the Company to comply with Section 409A of the
Code. Except as otherwise provided in the SERB Plan, no benefits
shall be payable hereunder prior to death, disability or termination of
employment.”
2. Incorporation of Amendment
and Agreement. Except as explicitly set forth in this
Amendment, the parties do not intend to modify the terms and conditions of the
Agreement, those terms and conditions shall remain in full force and effect, and
they shall be incorporated into this Amendment by this reference.
3. Miscellaneous.
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A.
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This
Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same
instrument.
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B.
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Wherever
possible, each provision of this Amendment shall be interpreted in such
manner as to be effective and valid under applicable law, but if any
provision of this Amendment shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this
Amendment.
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C.
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This
Amendment 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
Amendment.
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IN WITNESS WHEREOF, this
Amendment has been executed effective as of the Effective Date.
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CENTURY
ALUMINUM COMPANY
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EXECUTIVE
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By: /s/ Xxxxx
Xxxxxx
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By:
/s/ Xxxxx
Xxxx
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Name: Xxxxx
Xxxxxx
Title: President
and Chief Executive Officer
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Name: Xxxxx
Xxxx
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