SEVERANCE PROTECTION AGREEMENT
THIS
AGREEMENT,
made as
of the 1st
day of
March 2007, by and between the Company (as hereinafter defined) and Xxxxx Xxxx
(the “Executive”)
WITNESSETH:
WHEREAS,
the
Board
of Directors of the Company (the “Board”)
recognizes that the possibility of a Change in Control (as hereinafter defined)
exists and that the threat or the occurrence of a Change in Control can result
in significant distractions of its key management personnel because of the
uncertainties inherent in such a situation;
WHEREAS,
the
Board
has determined that it is essential and in the best interest of the Company
and
its stockholders to retain the services of the Executive in the event of a
threat or the occurrence of a Change in Control and to ensure his continued
dedication and efforts in such event without undue concern for his personal
financial and employment security; and
WHEREAS,
the
Executive is the Executive Vice President and Chief Operating Officer of the
Company and in order to induce the Executive to remain in the employ of the
Company, particularly in the event of a threat or the occurrence of a Change
in
Control, the Company desires to enter into this Agreement with the Executive
to
provide the Executive with certain benefits if his employment is terminated
as a
result of, or in connection with, a Change in Control;
NOW,
THEREFORE, in
consideration of the respective agreements of the parties contained herein,
it
is hereby agreed as follows:
1. Term
of Agreement. This
Agreement shall be effective as of March 1, 2007, and shall continue in effect
until December 31, 2009; provided, however, that commencing on January 1, 2010,
and on each January 1 thereafter, the term of this Agreement shall automatically
be extended for one year, subject however, to termination as provided in the
last sentence of this Section 1; and provided further, however, that the term
of
this Agreement shall not expire prior to the later of (i) the expiration of
36
months after the occurrence of a Change in Control during the term of this
Agreement, or (ii) until such time as all benefits to be provided for hereunder
have been provided in full. Except as otherwise provided herein, this Agreement
and the rights and obligations of each party hereunder shall terminate if the
Executive or the Company terminates the Executive’s employment prior to the
occurrence of a Change in Control.
2. Definitions.
2.1. Accrued
Compensation.
For
purposes of this Agreement, “Accrued
Compensation”
shall
mean any and all amounts or rights earned, accrued or vested through the
Termination Date (as hereinafter defined) but not paid as of the Termination
Date, including (i) base salary, (ii) reimbursement for reasonable and necessary
expenses incurred by the Executive on behalf of the Company during the period
ending on the Termination Date, (iii) vacation pay, (iv) bonuses, incentive
compensation (other than the Pro Rata Bonus (as hereinafter defined)), and
such
other benefits as may be provided in Executive’s employment agreement with the
Company.
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2.2. Cause. For
purposes of this Agreement, a termination of employment is for “Cause”
if
the
Executive (a) has disregarded a direct, material order of the Board, the
substance of which order is (i) a proper duty of the Executive under the terms
of his employment agreement, (ii)
permitted by law, and (iii) otherwise permitted by his employment agreement,
which disregard continues after 15 days’ opportunity and failure to cure, or (b)
has been convicted of a felony or any crime involving moral
turpitude.
2.3. Change
in Control. For
purposes of this Agreement, a “Change
in Control”
shall
mean any of the following events:
(a) An
acquisition (other than directly from the Company) of any voting securities
of
the Company (the “Voting
Securities”)
by any
“Person”
(as
the
term person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934) immediately after which such Person has “Beneficial
Ownership”
(within
the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of
1934)
of 20% or more of the combined voting power of the Company’s then outstanding
Voting Securities or, in the case of Glencore International AG and its
affiliates (collectively, “Glencore”),
Beneficial Ownership of 50% or more of such Voting Securities; provided,
however, that in determining whether a Change in Control has occurred, Voting
Securities which are acquired by any Person other than Glencore in a Non-Control
Acquisition (as hereinafter defined) shall not constitute an acquisition which
would cause a Change in Control.
A
“Non-Control
Acquisition”
shall
mean an acquisition by (1) an employee benefit plan (or a trust forming a part
thereof) maintained by (x) the Company or (y) any corporation or other Person
of
which a majority of its voting power or its equity securities or equity interest
is owned directly or indirectly by the Company (a “Subsidiary”), (2)
the
Company or any Subsidiary, or (3) any Person in connection with a Non-Control
Transaction (as hereinafter defined);
(b) The
individuals who, as of the date hereof, are members of the Board (the
“Incumbent
Board”),
cease
for any reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered a member of the Incumbent Board; provided further, however, that
no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened “Election
Contest”
(as
described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934)
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a “Proxy
Contest”)
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or
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(c) Approval
by stockholders of the Company of:
(1) A
merger,
consolidation or reorganization involving the Company, unless
(i) the
stockholders of the Company, immediately before such merger, consolidation
or
reorganization, own, directly or indirectly immediately following such merger,
consolidation or reorganization, at least 70% of the combined voting power
of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the “Surviving
Corporation”)
in
substantially the same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganization,
(ii) the
individuals who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, and
(iii) no
Person
(other than the Company, any Subsidiary, any employee benefit plan (or any
trust
forming a part thereof) maintained by the Company, the Surviving Corporation
or
any Subsidiary, or any Person who, immediately prior to such merger,
consolidation or reorganization, had Beneficial Ownership of 15% or more of
the
then outstanding Voting Securities) has Beneficial Ownership of 15% or more
of
the combined voting power of the Surviving Corporation’s then outstanding voting
securities (a transaction described in clauses (i) through (iii) above shall
herein be referred to as a “Non-Control
Transaction”);
(2) A
complete liquidation or dissolution of the Company; or
(3) An
agreement for the sale or other disposition of all or substantially all of
the
assets of the Company to any Person (other than a transfer to a
Subsidiary).
Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any Person (the “Subject
Person”)
acquired Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by reducing the number of Voting Securities
outstanding, increases the proportional number of shares Beneficially Owned
by
the Subject Person; provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of Voting
Securities by the Company, and after such share acquisition by the Company,
the
Subject Person becomes the Beneficial Owner of any additional Voting Securities
which increases the percentage of the then outstanding Voting Securities
beneficially owned by the Subject Person, then a Change in Control shall
occur.
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(d) Notwithstanding
anything contained in this Agreement to the contrary, if the Executive’s
employment is terminated prior to a Change in Control and the Executive
reasonably demonstrates that such termination (i) was at the request of a third
party who had indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in Control (a “Third
Party”) or (ii) otherwise occurred in connection with, or in anticipation of, a
Change in Control which actually occurs, then for all purposes of this
Agreement, the date of a Change in Control with respect to the Executive shall
mean the date immediately prior to the date of such termination of the
Executive’s employment.
2.4. Company. For
purposes of this Agreement, the “Company”
shall
mean Century Aluminum Company, a Delaware corporation, and shall include its
Successors and Assigns (as hereinafter defined).
As
used
in this Agreement, the term “affiliates” shall include any company controlled
by, controlling, or under common control with, the Company.
2.5. Disability. For
purposes of this Agreement, “Disability”
shall
mean a physical or mental infirmity which impairs the Executive’s ability to
substantially perform his duties with the Company for a period of 180
consecutive days, and the Executive has not returned to his full time employment
prior to the Termination Date as stated in the Notice of Termination (as
hereinafter defined).
2.6. Good
Reason.
(a) For
purposes of this Agreement, “Good
Reason”
shall
mean the occurrence after a Change in Control of any of the events or conditions
described in subsections (1) through (9) hereof:
(1) a
change
in the Executive’s status, title, position or responsibilities (including
reporting responsibilities) which, in the Executive’s reasonable judgment,
represents an adverse change from his status, title, position or
responsibilities as in effect at any time within one year preceding the date
of
a Change in Control or at any time thereafter; the assignment to the Executive
of any duties or responsibilities which, in the Executive’s reasonable judgment,
are inconsistent with his status, title, position or responsibilities as in
effect at any time within one year preceding the date of a Change in Control
or
at any time thereafter; or any removal of the Executive from or failure to
reappoint or reelect him to any of such offices or positions, except in
connection with the termination of his employment for Disability, Cause, as
a
result of his death or by the Executive other than for Good Reason;
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(2) a
reduction in the Executive’s base salary or the failure of the Company to (i)
pay to the Executive an annual bonus in cash at least equal to the annual bonus
paid to the Executive for the most recently completed fiscal year prior to
the
Change in Control, such bonus to be paid no later than the end of the third
month of the fiscal year next following the fiscal year for which the annual
bonus is awarded, unless the Executive shall elect to defer the receipt of
such
annual bonus, (ii) increase the Executive’s base salary, annual bonus and any
other incentive compensation, including performance shares and options,
consistent with the Company’s practice prior to the Change in Control or, if
greater, as the same may be increased from time to time for other key executive
officers of the Company and its affiliated companies, or (iii) pay to the
Executive any compensation or benefits to which he is entitled within five
days
of the date due;
(3) the
Company’s requiring the Executive to be based at any place outside a 30-mile
radius from the Company’s offices where he was based prior to the Change in
Control, except for reasonably required travel on the Company’s business which
is not materially greater than such travel requirements prior to the Change
in
Control;
(4) the
failure by the Company to (A) continue in effect (without reduction in benefit
level and/or reward opportunities) any material compensation or employee benefit
plan (including, without limitation, long-term disability, medical, dental,
life
insurance, flexible spending account, pre-tax insurance premiums, vacation
pay,
pension and profit-sharing) in which the Executive was participating at any
time
within one year preceding the date of a Change in Control or at any time
thereafter, unless such plans are replaced with plans that provide substantially
equivalent compensation or benefits to the Executive, (B) provide the Executive
with compensation and benefits, in the aggregate, at least equal (in terms
of
benefit levels and/or reward opportunities) to those provided for under each
other employee benefit plan, program and practice in which the Executive was
participating at any time within one year preceding the date of a Change in
Control or at any time thereafter, or (C) permit the Executive to participate
in
any or all incentive, savings, retirement plans and benefit plans, fringe
benefits, practices, policies and programs applicable generally to other key
executives of the Company and its affiliated companies;
(5) the
insolvency or the filing (by any party, including the Company) of a petition
for
bankruptcy of the Company, which petition is not dismissed within 60
days;
(6) any
material breach by the Company of any provision of this Agreement;
(7) any
purported termination of the Executive’s employment for Cause by the Company
which does not comply with the terms of Section 2.2;
(8) the
disposition of all, or substantially all, of the assets of the Company;
or
(9) the
failure of the Company to obtain an agreement, satisfactory to the Executive,
from any Successors and Assigns to assume and agree to perform this Agreement,
as contemplated in Section 6 hereof.
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(b) Any
event
or condition described in Section 2.6(a) (1) through (9) above which occurs
prior to a Change in Control but which the Executive reasonably demonstrates
(1)
was at the request of a Third Party, or (2) otherwise arose in connection with,
or in anticipation of, a Change in Control which actually occurs, shall
constitute Good Reason for purposes of this Agreement notwithstanding that
it
occurred prior to the Change in Control.
2.7. Highest
Annual Bonus. For
purposes of this Agreement, “Highest
Annual Bonus”
shall
mean an amount equal to the highest bonus or bonuses paid or payable to the
Executive in any of the five most recently completed fiscal years prior to
the
Change in Control (or such shorter period that the Executive has been
employed).
2.8. Highest
Base Salary. For
purposes of this Agreement, “Highest
Base Salary”
shall
mean the Executive’s annual base salary at the highest rate in effect during the
five-year period (or such shorter period that the Executive has been employed)
prior to the Change in Control, and shall include all amounts of his base salary
that are deferred under the qualified and non-qualified employee benefit plans
of the Company or any other agreement or arrangement.
2.9. Notice
of Termination. For
purposes of this Agreement, following a Change in Control, “Notice
of Termination”
shall
mean a written notice of termination from the Company of the Executive’s
employment which indicates the specific termination provision in this Agreement
relied upon and which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated.
The
Notice of Termination shall also specify the relevant Termination
Date.
2.10. Pro
Rata Bonus. For
purposes of this Agreement, “Pro
Rata Bonus”
shall
mean an amount equal to the Highest Annual Bonus multiplied by a fraction,
the
numerator of which is the number of days elapsed in the fiscal year through
the
Termination Date and the denominator of which is 365.
2.12. Termination
Date. For
purposes of this Agreement, “Termination
Date”
shall
mean in the case of the Executive’s death, his date of death, in the case of the
Executive’s resignation for any reason, the last day of his employment, and in
all other cases, the date specified in the Notice of Termination; provided,
however, that if the Executive’s employment is terminated by the Company for
Cause or due to Disability, the date specified in the Notice of Termination
shall be at least 30 days after the date the Notice of Termination is given
to
the Executive, provided, that in the case of Disability the Executive shall
not
have returned to the full-time performance of his duties during such period
of
at least 30 days.
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3. Termination
of Employment.
3.1. If,
during the term of this Agreement, the Executive’s employment with the Company
shall be terminated within 36 months following a Change in Control, the
Executive shall be entitled to the following compensation and
benefits:
(a) If
the
Executive’s employment with the Company shall be terminated (1) by the Company
for Cause or Disability, (2) by reason of the Executive’s death, or (3) by the
Executive other than for Good Reason, the Company shall pay to the Executive
the
Accrued Compensation and, if such termination is other than by the Company
for
Cause, a Pro Rata Bonus.
(b) If
the
Executive’s employment with the Company shall be terminated by reason of the
Executive’s death or disability, the Executive, or his beneficiaries or personal
representatives, as the case may be, shall be entitled to receive the greater
of
those amounts described in Section 3.1(a) above or such other compensation
and
benefits as may be provided for in his employment and other agreements for
termination of employment under similar circumstances.
(c) If
the
Executive’s employment with the Company shall be terminated for any reason other
than as specified in Section 3.1(a), the Executive shall be entitled to the
following:
(i) the
Company shall pay the Executive all Accrued Compensation and a Pro Rata
Bonus;
(ii) the
Company shall pay the Executive as severance pay and in lieu of any further
compensation for periods subsequent to the Termination Date, in a single payment
an amount in cash equal to three times the sum of (A) the Highest Base Salary
and (B) the Highest Annual Bonus, in each case calculated to include amounts
deferred under the Company’s qualified and non-qualified plans;
(iii) for
a
period of 36 months after the Termination Date (the “Continuation
Period”),
the
Company shall, at its expense, provide to the Executive and his dependents
and
beneficiaries comparable employee benefits provided (x) to the Executive at
any
time during the one year period prior to the Change in Control or at any time
thereafter or (y) to other similarly situated executives who continue in the
employ of the Company during the Continuation Period, including, but not limited
to, long-term disability, medical, dental, life insurance, and pre-tax insurance
premiums.
The
coverage and benefits (including deductibles and costs) provided in this Section
3.1(c)(iii) during the Continuation Period shall be no less favorable to the
Executive and his dependents and beneficiaries than the most favorable of such
coverage and benefits during any of the periods
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referred
to in clauses (x) and (y) above.
The
Company’s obligation hereunder with respect to the foregoing benefits shall be
limited to the extent that the Executive obtains any such benefits pursuant
to a
subsequent employer’s benefit plans, in which case the Company may reduce the
coverage of any benefits it is required to provide the Executive hereunder
as
long as the aggregate coverage and benefits of the combined benefit plans is
no
less favorable to the Executive than the coverage and benefits required to
be
provided hereunder.
This
subsection (iii) shall not be interpreted so as to limit any benefits to which
the Executive, his dependents or beneficiaries may be entitled under any of
the
Company’s employee benefit plans, programs or practices following the
Executive’s termination of employment, including, without limitation, retiree
medical and life insurance benefits;
(iv) the
Company shall credit the Executive for pension purposes with three years of
service beyond the Termination Date and shall pay to the Executive in a single
payment an amount in cash equal to the excess of (A) the Recalculated Retirement
Benefit (as provided in this Section 3.1(c)(iv)) had (w) the Executive remained
employed by the Company for the additional three complete years of credited
service, (x) his annual compensation during such period been equal to the
Highest Base Salary and the Highest Annual Bonus, (y) the benefit accrual
formulas of each retirement plan remained no less advantageous to the Executive
than those in effect immediately preceding the date on which a Change in Control
occurred and the Company made employer contributions to each defined
contribution plan in which the Executive was a participant at the Termination
Date in an amount equal to the amount of such contribution for the plan year
immediately preceding the Termination Date, and (z) he been fully (100%) vested
in his benefit under each retirement plan in which the Executive was a
participant, over (B) the lump sum actuarial equivalent of the aggregate
retirement benefit the Executive is actually entitled to receive under such
retirement plans.
For
purposes of this subsection (iv), the “Recalculated
Retirement Benefit”
shall
mean the lump sum actuarial equivalent of the aggregate retirement benefit
the
Executive would have been entitled to receive under the Company’s qualified and
non-qualified retirement plans.
For
purposes of this subsection (iv), the “actuarial equivalent” shall be determined
in accordance with the actuarial assumptions used for the calculation of
benefits under the applicable retirement plan as applied prior to the
Termination Date in accordance with such plan’s past practices; and
(v) (A)
the
restrictions on any outstanding incentive awards (including restricted stock
and
performance share units) granted to the Executive under the 1996 Stock Incentive
Plan, as amended from time to time, or under any other incentive plan or
arrangement shall lapse and such incentive awards shall become 100% vested
and
all stock options
-8-
granted
to the Executive shall become immediately exercisable and shall become 100%
vested (and restrictions on any stock issued upon exercise of stock options
shall lapse), and Section 6.B of the 1996 Stock Incentive Plan Implementation
Guidelines notwithstanding, all performance shares awarded to the Executive
pursuant to the Guidelines shall be valued at 100% as though the Company had
achieved its target for each respective Plan Period, and an equal number of
shares of common stock shall be awarded to the Executive, and (B) the Executive
shall have the right to require the Company to purchase, for cash, any shares
of
unrestricted stock or shares purchased upon exercise of any options or received
pursuant to a performance share award at a price equal to the fair market value
of such shares on the date of purchase by the Company.
(d) The
amounts provided for in Sections 3.1(a), 3.1(c)(i), 3.1(c)(ii) and 3.1(c)(iv)
shall be paid in a single lump sum cash payment within five days after the
Executive’s Termination Date (or earlier, if required by applicable law).
Notwithstanding the foregoing, all payments made to the Executive shall be
paid
in conformance with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”)
(e) The
Executive shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise and no such
payment shall be offset or reduced by the amount of any compensation or benefits
provided to the Executive in any subsequent employment except as provided in
Section 3.1(c)(iii).
Notwithstanding
the foregoing, the Executive agrees that during the Continuation Period, he
shall not (i) solicit any employees of the Company to leave the Company’s employ
to work for any company with which the Executive is employed, or (ii) employ
any
employee who is employed by the Company at any time during the Continuation
Period.
A
breach
of either of the foregoing covenants will result in the Executive forfeiting
any
further benefits to which he is entitled pursuant to Section 3.1(c)(iii),
although the Executive shall not be required to return any payments to the
Company that have been made to the Executive prior to the date of such
breach.
3.2. a)
Except
as otherwise provided in Section 3.1(b), the severance pay and benefits provided
for in this Section 3 shall be in lieu of any other severance or termination
pay
to which the Executive may be entitled under any employment agreement or any
Company severance or termination plan, program, practice or
arrangement.
(b) The
Executive’s entitlement to any other compensation benefits shall be determined
in accordance with the Company’s employee benefit plans and other applicable
programs, policies and practices then in effect.
(c) Notwithstanding
anything to the contrary in this Agreement, if the Executive is terminated
by
the Company after the occurrence of a Change in Control and is subsequently
rehired by the Company at any time thereafter, the Executive
shall
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not
be
entitled to any further benefits under Section 3.1(c)(iii) of this Agreement
although the Executive shall not be required to return any payments to the
Company which have been made to the Executive prior to the date the Executive
is
rehired.
4. Notice
of Termination. Following
a Change in Control, any purported termination of the Executive’s employment by
the Company shall be communicated by Notice of Termination to the Executive.
For
purposes of this Agreement, no such purported termination shall be effective
without such Notice of Termination.
(a) If
any
payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to
the
Executive or for his benefit paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise in connection with, or
arising out of, his employment with the Company or a change in ownership or
effective control of the Company or of a substantial portion of its assets
(each
a “Payment”
and
collectively, the “Payments”),
would
be subject to the excise tax imposed by Section 4999 of the Code or any interest
or penalties are incurred by the Executive with respect to such excise tax
(such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “Excise
Tax”),
then
the Executive will be entitled to receive an additional payment (a “Gross-Up
Payment”),
such
that the net amount retained by the Executive, after deduction and/or payment
of
any Excise Tax on the Payments and the Gross-Up Payment and any federal, state
and local income tax on the Gross-Up Payment (including any interest or
penalties, other than interest and penalties imposed by reason of the
Executive’s failure to file timely a tax return or pay taxes shown due on his
return, imposed with respect to such taxes), shall be equal to the
Payments.
(b) An
initial determination as to whether a Gross-Up Payment is required pursuant
to
this Agreement and the amount of such Gross-Up Payment shall be made at the
Company’s expense by an accounting firm selected by the Company and reasonably
acceptable to the Executive which is designated as one of the four largest
accounting firms in the United States (the “Accounting
Firm”).
The
Accounting Firm shall provide its determination (the “Determination”),
together with detailed supporting calculations and documentation to the Company
and the Executive within five days of the Termination Date if applicable, or
such other time as requested by the Executive (provided the Executive reasonably
believes that any of the Payments may be subject to the Excise Tax) and if
the
Accounting Firm determines that no Excise Tax is payable by the Executive as
provided in Section 5(a) above, it shall furnish the Executive with an opinion
reasonably acceptable to the Executive to such effect. Within ten days of the
delivery of the Determination to the Executive, the Executive shall have the
right to dispute the Determination (the “Dispute”).
The
Gross-Up Payment, if any, as determined pursuant to this Paragraph 5(b) shall
be
paid by the Company to the Executive within five days of the receipt of the
Accounting Firm’s determination. The existence of the Dispute shall not in any
way affect the Executive’s right to receive the
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Gross-Up
Payment in accordance with the Determination. Upon the final resolution of
a
Dispute, the Company shall promptly pay to the Executive any additional amount
required by such resolution. If there is no Dispute, the Determination shall
be
binding, final and conclusive upon the Company and the Executive subject to
the
application of Section 5(c) below.
(c) As
a
result of the uncertainty in the application of Sections 4999 and 280G of the
Code, it is possible that a Gross-Up Payment (or a portion thereof) will be
paid
which should not have been paid (an “Excess
Payment”)
or a
Gross-Up Payment (or a portion thereof) which should have been paid will not
have been paid (an “Underpayment”).
An
Underpayment shall be deemed to have occurred (i) upon notice (formal or
informal) to the Executive from any governmental taxing authority that the
Executive’s tax liability (whether in respect of the Executive’s current taxable
year or in respect of any prior taxable year) may be increased by reason of
the
imposition of the Excise Tax on a Payment or Payments with respect to which
the
Company has failed to make a sufficient Gross-Up Payment, (ii) upon a
determination by a court, (iii) by reason of a determination by the Company
(which shall include the position taken by the Company, together with its
consolidated group, on its federal income tax return) or (iv) upon the
resolution of the Dispute to the Executive’s satisfaction. If an Underpayment
occurs, the Executive shall promptly notify the Company and the Company shall
promptly, but in any event, at least five days prior to the date on which the
applicable government taxing authority has requested payment, pay to the
Executive an additional Gross-Up Payment equal to the amount of the Underpayment
plus any interest and penalties (other than interest and penalties imposed
by
reason of the Executive’s failure to file timely a tax return or pay taxes shown
due on the Executive’s return) imposed on the Underpayment. An Excess Payment
shall be deemed to have occurred upon a Final Determination (as hereinafter
defined) that the Excise Tax shall not be imposed upon a Payment or Payments
(or
portion thereof) with respect to which the Executive had previously received
a
Gross-Up Payment. A “Final
Determination”
shall
be deemed to have occurred when the Executive has received from the applicable
government taxing authority a refund of taxes or other reduction in the
Executive’s tax liability by reason of the Excess Payment and upon either (x)
the date a determination is made by, or an agreement is entered into with,
the
applicable governmental taxing authority which finally and conclusively binds
the Executive and such taxing authority, or if a claim is brought before a
court
of competent jurisdiction, the date upon which a final determination has been
made by such court and either all appeals have been taken and finally resolved
or the time for all appeals has expired or (y) the statute of limitations with
respect to the Executive’s applicable tax return has expired. If an Excess
Payment is determined to have been made, the amount of the Excess Payment shall
be treated as a loan by the Company to the Executive and the Executive shall
pay
to the Company on demand (but not less than 10 days after the determination
of
such Excess Payment and written notice has been delivered to the Executive)
the
amount of the Excess Payment plus interest at an annual rate equal to the
Applicable Federal Rate provided for in Section 1274(d) of the Code from the
date the Gross-Up Payment (to which the Excess Payment relates) was paid to
the
Executive until the date of repayment to the Company.
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(d) Notwithstanding
anything contained in this Agreement to the contrary, if, according to the
Determination, an Excise Tax will be imposed on any Payment or Payments, the
Company shall pay to the applicable government taxing authorities as Excise
Tax
withholding, the amount of the Excise Tax that the Company has actually withheld
from the Payment or Payments.
6. Successors’
Binding Agreement.
(a) This
Agreement shall be binding upon and shall inure to the benefit of the Company,
its Successors and Assigns and the Company shall require any Successors and
Assigns to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform
it
if no such succession or assignment had taken place.
(b) Neither
this Agreement nor any right or interest hereunder shall be assignable or
transferable by the Executive, his beneficiaries or legal representatives,
except by will or by the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive’s legal personal
representative.
7. Fees
and Expenses. The
Company shall pay all legal fees and related expenses (including the costs
of
experts, evidence and counsel) incurred by the Executive as they become due
as a
result of (a) the Executive’s termination of employment (including all such fees
and expenses, if any, incurred in contesting or disputing any such termination
of employment), and (b) the Executive seeking to obtain or enforce any right
or
benefit provided by this Agreement (including, but not limited to, any such
fees
and expenses incurred in connection with the Dispute and any other matter
arising under Section 5, including the existence and amount of any Excess
Payment or Underpayment and issues with respect to the Gross-Up Payment, whether
as a result of any applicable government taxing authority proceeding, audit
or
otherwise, or by any other plan or arrangement maintained by the Company under
which the Executive is or may be entitled to receive benefits); provided,
however, that any such action by the Executive is commenced in good faith and
for good reason; provided, however, that the circumstances set forth in clauses
(a) and (b) (other than as a result of the Executive’s termination of employment
under circumstances described in Section 2.3(d)) occurred on or after a Change
in Control and that no such amounts shall be due and payable by the Company
after December 31 of the second calendar year following the calendar year in
which the Executive’s termination of employment occurred.
8. Notices. For
the
purposes of this Agreement, notices and all other communications provided for
in
the Agreement (including the Notice of Termination) shall be in writing and
shall be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, addressed to the
respective addresses for the parties set forth on Exhibit
A
hereto
or to any other addresses as the respective parties may designate by notice
delivered pursuant to this Section 8; provided that all notices to the Company
shall be directed to the attention of the Board with a copy to the Secretary
of
the Company.
All
notices and communications
shall be deemed to have been received on the date of delivery thereof or on
the
third business day after the mailing thereof, except that notice of change
of
address shall be effective only upon receipt.
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9. Non-Exclusivity
of Rights. Except
as
otherwise provided in Section 3.2(a), nothing in this Agreement shall prevent
or
limit the Executive’s continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company and for which the
Executive may qualify, nor shall anything herein limit or reduce such rights
as
the Executive may have under any other agreements with the Company.
Amounts
which are vested benefits or which the Executive is otherwise entitled to
receive under any plan or program of the Company shall be payable in accordance
with such plan or program, except as explicitly modified by this
Agreement.
10. Settlement
of Claims. The
Company’s obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against the
Executive or others.
11. Modification,
Waiver and Miscellaneous. No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the
Executive and the Company.
No
waiver
by either party hereto at any time of any breach by the other party hereto
of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time.
No
agreement or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement.
12. Governing
Law and Jurisdiction. This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Delaware without giving effect to the conflict of laws
principles thereof. Any claims arising under or related to this Agreement shall
be settled by binding arbitration pursuant to the rules of the American
Arbitration Association or such other rules as to which the parties may agree.
The arbitration shall take place in San Francisco, California, within 30 days
following service of notice of such dispute by one party on the other. The
arbitration shall be conducted before a panel of three arbitrators, one to
be
selected by each of the parties and the third to be selected by the other two.
The panel of arbitrators shall have no authority to order a modification or
amendment of this Agreement. The parties agree to abide by all awards rendered
in such proceedings. Such awards shall be final and binding on all parties,
and
may be filed with the clerk of one or more courts, state or federal, having
jurisdiction over the party against whom such award is rendered or such party’s
property as a basis of judgment and of the issuance of execution for its
collection.
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13. Severability.
The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
14. Entire
Agreement. Except
as
otherwise provided below, this Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
If
the
Executive and the Company have also entered into an employment agreement, and
there is an inconsistency between the terms of this Agreement and the terms
of
such employment agreement, then the Agreement which provides terms most
favorable to the Executive shall govern.
IN
WITNESS WHEREOF, the
Company has caused this Agreement to be executed by its duly authorized officer
and the Executive has executed this Agreement as of the day and year first
above
written.
|
CENTURY
ALUMINUM COMPANY
|
XXXXX
XXXX
|
|
By: /s/
Xxxxx X. Xxxxxx
|
By: /s/
Xxxxx Xxxx
|
|
Name: XXXXX
X. XXXXXX
Title: PRESIDENT
AND CHIEF
EXECUTIVE
OFFICER
|
Name: XXXXX
XXXX
Title:
EXECUTIVE
|
