AMENDMENT No. 2 to EMPLOYMENT AGREEMENT
EXHIBIT
10.1
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 Xxxxx X. Xxxxxx (the
“Executive”).
RECITALS
A. The
Company and the
Executive are parties to an Employment Agreement, made as of December 13, 2005
and amended as of March 19, 2007, pursuant to which agreement, as so amended,
the parties agreed that the Company would employ Executive as President and
Chief Executive Officer (collectively, the “Employment Agreement”).
B. The
Company and the
Executive desire to amend certain provisions of the Employment
Agreement.
THE
PARTIES AGREE AS FOLLOWS:
1. 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:
“B. Initial
Term. Executive's employment hereunder shall commence as
of
December
13, 2005, 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.”
2. 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:
“2.1 Base
Salary.
(a) (i) Effective
as of December 13, 2005, Executive shall be paid an initial salary at the
monthly rate of $62,500, 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 $750,000.
(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.”
3. 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 (iii) 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.)”
4. Amended
Vesting for Supplemental Retirement Benefit. Section 4.2(c)
of the Employment Agreement is hereby deleted in its entirety and replaced
as
follows, effective on the Effective Date:
“(c) Vesting. The
Qualified Plan Benefits and the Supplemental Retirement Benefit described in
Section 4.2 (b)(i) shall be fully vested as of December 13,
2005. Upon the termination of Executive's employment he shall be
entitled to receive all such benefits as provided in Section 4.2 (d). The
Supplemental Retirement Benefit described in Section 4.2 (b)(ii) shall begin
vesting on December 13, 2005 and shall, so long as Executive is employed by
the
Company, cumulatively vest thereafter in equal monthly installments at the
rate
of 1/120th per
calendar month for 120 months (with the period from December 13 to December
31,
2005, inclusive, being considered a “calendar month” for vesting purposes
hereunder), except as follows; i.e., if during the term of this Agreement,
and
prior to full vesting:
(i) Executive
voluntarily terminates his employment (other than for “Good Reason” as defined
in the SPA) prior to December 13, 2010, then Executive shall be vested in zero
percent of the Supplemental Retirement Benefit, except as provided in Sections
4.2(c)(iii), (iv) or (v) below; and if Executive voluntarily terminates his
employment (other than for “Good Reason” as defined in the SPA) on or after
December 13, 2010, then with respect to the calendar year in which he so
terminates his employment Executive shall vest 1/120th per calendar month up
to
and including the month of termination if such termination occurs after June
30
of such calendar year, and he shall not vest with respect to any calendar
month in the first half of such calendar year if such termination occurs on
or
before June 30 thereof;
(ii) Executive
is
terminated for cause pursuant to Section 7(c) prior to December 13, 2010, he
shall be vested in zero percent of the Supplemental Retirement Benefit; and
if
Executive is terminated for cause on or after December 13, 2010, he shall not
be
entitled to be vested for any interest for the calendar year in which he is
terminated;
(iii) 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, or (ii) his termination
for
cause, death, disability, or due to a change in control, Executive shall in
the
circumstances contemplated under Sections 4.2(c)(iii)(a) or (b), above, continue
to vest in equal monthly installments at the rate of 1/120th per calendar
month for the then-remaining balance of the term of this Agreement;
(iv) Executive
dies or becomes disabled, and (a) death or such disability occurs on or before
December 12, 2010, then the Supplemental Retirement Benefit will vest at the
cumulative vesting level reached as of the date of Executive’s death or
disability (i.e., in equal monthly installments, at the rate of
1/120th
per calendar month, as hereinabove provided), or (b) death or such disability
occurs on or after December 13, 2010, the Supplemental Retirement Benefit will
vest 100 percent upon Executive’s death or disability; and Executive shall in
either case be entitled to receive payments as described in Section 4.2 (d),
except that if termination occurs as a result of disability, and Executive
is
receiving disability payments from the Company, the Supplemental Retirement
Benefit will be reduced so that the combined Supplemental Retirement Benefit
and
disability benefit shall equal the amount described in Section 4.2(b)(ii);
or
(v) There
is a
Change of Control, and Executive is terminated or resigns for Good Reason in
connection therewith, Executive will vest 100 percent immediately upon such
termination or resignation.”
5. 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.
6. 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.
For
CENTURY ALUMINUM COMPANY
By: /s/
Xxxxx X.
Xxxxx
Xxxxx X. Xxxxx
Chairman of the Board
EXECUTIVE
/s/
Xxxxx X.
Xxxxxx
Xxxxx
X. Xxxxxx
President,
Chief
Executive Officer
