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 Wayne Hale (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:
(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, e
