AMENDMENT No. 2 to EMPLOYMENT AGREEMENT
EXHIBIT 10.4
AMENDMENT
No. 2 to
THIS
AMENDMENT No. 2 to EMPLOYMENT AGREEMENT (this “Amendment No. 2”) is made as of
August 30, 2007 (the “Effective Date”), by and between Century Aluminum Company,
a Delaware corporation (the “Company”), and Xxxxxx X. Xxxxxxx (the
“Executive”).
RECITALS
A. The
Company and the
Executive are parties to an Employment Agreement, made as of May 1, 2006 and
amended as of March 19, 2007 (collectively, the “Employment
Agreement”).
B. The
Company and the
Executive desire to amend certain provisions of the Employment
Agreement.
THE
PARTIES AGREE AS FOLLOWS:
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1.
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Amendment
with regard to Initial Term. Section 1.1, B of the Employment
Agreement is deleted in its entirety and replaced as follows, effective
on
the Effective Date:
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“B. Initial
Term. Executive's employment hereunder shall commence as
of
May
1,
2006, and shall end December 31, 2009 (the “Initial Term”); provided, however,
that unless earlier terminated in accordance with the terms of this Agreement,
and subject, however, to termination as provided in Section 1.1.C, commencing
on
January 1, 2008, and on each January 1 thereafter, the Initial Term of this
Agreement shall automatically be extended for one year (each then-extended
year
of this Agreement being an “Extended Term”). The Initial Term as may
be extended by each Extended Term is hereinafter referred to as the “term of
this Agreement.” For the second and each subsequent year during the
term of this Agreement, Executive shall be employed at a salary not less than
Executive’s salary in the immediately preceding year, and on other terms and
conditions at least as favorable to Executive as those applicable to Executive
during the immediately preceding year, or as may otherwise be agreed to by
the
Company and Executive in writing.”
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2.
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Amended
Provision with regard to Base Salary. Section
2.1 of the Employment Agreement is hereby deleted in its entirety
and
replaced as follows, effective on the Effective
Date:
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“2.1 Base
Salary.
(a) (i) Effective
as of May 1, 2006, Executive shall be paid an initial salary at the monthly
rate
of $29,166.67, 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 $350,000.
(ii) If
Executive (a) voluntarily terminates his employment for “Good Reason” as defined
in the SPA, or (b) does not continue to be employed by the Company for any
reason other than (i) his voluntary resignation without Good Reason, (ii) his
termination for disability as determined pursuant to Section 7(b), (iii) his
death, or (iv) his termination for cause pursuant to Section 7(c), Executive
shall in the circumstances contemplated under Sections 2.1(a)(ii)(a) or (b),
above 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
Section 2.1(a)(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 (without “Good Reason” as defined in the SPA) 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 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.”
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3.
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Amended Provision with regard to Change in Control. Section 3.2 of the Employment Agreement is hereby deleted in its entirety and replaced as follows, effective on the Effective Date. |
"3.2 Effect
of Termination of Employment or Change in Control.
(a) If
Executive shall resign voluntarily (other than for “Good Reason” as defined in
the SPA) 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 (i) voluntarily terminates his employment for “Good Reason” as defined
in the SPA, or (ii) dies or becomes disabled, or (iii) does not continue to
be
employed by the Company for any reason other than (a) his voluntary resignation
without Good Reason, or (b) his death or disability as determined pursuant
to
Section 7(b) of this Agreement, or (c) his termination for cause pursuant to
Section 7(c), all options which have not vested as of the date of such voluntary
termination, or death or disability, or such non-continuation of employment,
as
the case may be, will accelerate and vest immediately as of such date, 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 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 (i) voluntarily terminates his employment for “Good Reason” as defined
in the SPA, or (ii) dies or becomes disabled, or (iii) does not continue to
be
employed by the Company for any reason other than (a) his voluntary resignation
without Good Reason, or (b) his death or disability as determined pursuant
to
Section 7(b) of this Agreement, or (c) his termination for cause pursuant to
Section 7(c), or (iv) retires, all 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.)”
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4.
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Incorporation
of Amendment Agreement and SPA. Except as explicitly
set forth
in this Amendment No. 2 the parties do not intend to modify the terms
and
conditions of the Employment Agreement or the SPA, those terms and
conditions shall remain in full force and effect, and they shall
be
incorporated into this Amendment No. 2 by this
reference.
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5.
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Miscellaneous. |
a. This
Amendment No. 2 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.
b. Wherever
possible, each provision of this Amendment No. 2 shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Amendment No. 2 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 No. 2.
c. This
Amendment No. 2 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.
IN
WITNESS WHEREOF, this Amendment No. 2 has been duly executed as of the Effective
Date.
CENTURY
ALUMINUM COMPANY
By: /s/
Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
President,
Chief
Executive Officer
EXECUTIVE
/s/
Xxxxxx X.
Xxxxxxx
Xxxxxx
X.
Xxxxxxx
Executive
Vice President
General
Counsel,
Secretary
