Exhibit 10.1
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TERMINATION AND CONSULTING AGREEMENT
This
Termination and Consulting Agreement (this "Agreement") by and
among
Noranda Aluminum Holding Corporation ("Parent"), Noranda Aluminum,
Inc. (the
"Company"), and Richard Anderson (the "Consultant") is dated as of
the 14th day
of October, 2008.
WHEREAS, the Consultant has faithfully served the Company and
its
affiliates for many years, including as Chief Financial Officer of
the Company,
and has considerable knowledge and experience with respect to the
Company's
operations; and
WHEREAS, the Consultant and the Company have agreed that the
Consultant
will retire from active service with the Company and its affiliates
as of
October 31, 2008 (the "Date of Termination"); and
WHEREAS, the Company and Parent have determined that it is in their
best
interests for the Consultant to provide his continued services and
expertise to
the Company and Parent following the Date of Termination and to
ensure that the
Consultant cannot perform services for a competitor of the Company,
Parent and
their respective affiliates, all on the terms and conditions set
forth below;
NOW,
THEREFORE, it is hereby agreed as follows:
1.
Retirement from Employment; Severance Payments.
(a)
The Consultant hereby retires from his employment with the
Company,
effective as of close of business on the Date of Termination, and
concurrently
resigns from all offices and directorships he holds with the
Company, Parent or
any of their respective affiliates.
(b)
Subject to the Consultant's compliance with the terms of this
Agreement, the Company agrees to provide the Consultant with the
payments and
benefits determined pursuant to Section 4 of, and Exhibit A to, the
Noranda
Aluminum, Inc. Senior Managers Severance Plan (the "Severance
Plan") and such
other benefits as provided in the letter set forth as Attachment B
hereto,
provided, that, as of the Date of Termination, the Consultant
executes and,
prior to the Revocation Date does not revoke, a release
substantially in the
form set forth on Attachment A hereto (the "Release"). The
"Revocation Date"
shall be the date that is eight (8) days after the date on which
the Consultant
signs the Release. The Consultant acknowledges and agrees that,
except as
expressly set forth in this Agreement and Attachment B hereto, he
has no right
to any payments or benefits under the Severance Plan, and expressly
waives any
rights under such plan.
2.
Consulting Services.
(a)
From the Date of Termination through May 18, 2012, or such earlier
date
as may be provided pursuant to Section 2(c) or (d) below (the
"Consulting
Term"), in consideration for the compensation provided for below,
the Consultant
shall make himself available to Parent and the Company, at mutually
convenient
times and places, for such consulting services as may be requested
by them. The
Consultant expressly agrees to render up to ten (10) hours of such
services per
calendar month during the Consulting Term, if so requested by
Parent and the
Company.
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(b)
During the Consulting Term, the Company shall pay the Consultant a
fee
of two thousand dollars ($2,000.00) per month, payable monthly in
advance (the
"Fee"). Further, the Consultant shall be entitled to reimbursement
for all
reasonable expenses incurred by him in the performance of services
hereunder, in
accordance with the policies of Parent, the Company or their
respective
affiliates.
(c)
During the Consulting Term, any stock options previously granted to
the
Consultant under the Parent's Amended and Restated 2007 Long-Term
Incentive Plan
(the "LTIP") shall continue to vest in accordance with the terms of
the LTIP and
any applicable option award agreements and any post-termination
exercise period
applicable to any such options shall not commence until the
termination of the
Consulting Term (provided that such options shall in no event be
exercisable
beyond their original scheduled term). In consideration for the
foregoing, the
Consultant (i) agrees not to exercise any such stock options
without the prior
written consent of the Parent and (ii) acknowledges that any such
attempted
exercise shall be null and void and without effect, except that (x)
in the event
of a Tag-Along Transaction, the Consultant shall be permitted to
exercise an
amount of his then-vested options in order to permit him to fully
participate in
such Tag-Along Transaction on a proportionate basis with each of
the Other
Holders and (y) the Consultant may be required to exercise an
amount or all of
his then-vested options in the event of a Drag-Along Sale (all
capitalized terms
used in this sentence but not defined herein shall have the
meanings ascribed to
them in the Securityholders Agreement).
(d)
If the Consulting Term terminates for any reason, the Consultant
shall
not be required to render any further services and shall not be
entitled to, nor
shall the Company or Parent have any obligation to pay, any further
portion of
the Fee.
(e)
The Consultant's status during the Consulting Term shall be that of
an
independent contractor and not, for any purpose, that of an
employee or agent
with authority to bind Parent or the Company in any respect. Except
as provided
above, the Consultant shall not be eligible for any additional
compensation or
benefits from Parent or the Company. Any payments made to the
Consultant
hereunder shall not be taken into account in computing the
Consultant's salary
or compensation for the purposes of determining any benefits or
compensation
under (a) any pension, retirement, life insurance or other benefit
plan of the
Company, Parent or any of their respective affiliates or (b) any
agreement
between the Company, Parent or any of their respective affiliates
and the
Consultant.
(f)
Notwithstanding anything to the contrary in the Amended and
Restated
Securityholders Agreement of Parent dated as of October 23, 2007
(the
"Securityholders Agreement"), solely for purposes of Section 6 of
the
Securityholders Agreement, the Consultant's termination of
employment shall be
deemed to (i) occur on the final day of the Consulting Term and
(ii) be a
termination by Parent without Cause; provided, however, that if
Parent or the
Company terminate the Consulting Term with Cause or the Consultant
terminates
the Consulting Agreement for any reason, for purposes of Section 6
of the
Securityholders Agreement, the Consultant's "termination of
employment" shall be
deemed to be a termination by Parent with Cause. For purposes of
this Agreement,
"Cause" shall mean: (i) the willful and continued failure of the
Consultant to
perform substantially the Consultant's duties under this Agreement
(other than
any such failure resulting from incapacity due to physical or
mental illness),
(ii) the willful engagement by the Consultant in illegal conduct or
gross
misconduct which is injurious to the Parent or the Company, or
(iii) a violation
by the Consultant of the terms of Sections 3 through 4 of this
Agreement.
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(g)
All payments and other consideration made or provided to the
Consultant
under this Agreement shall be made or provided without withholding
or deduction
of any kind, and the Consultant shall assume sole responsibility
for discharging
all tax or other obligations associated therewith.
3.
Confidentiality. The Consultant shall hold in a fiduciary capacity
for
the benefit of Parent, the Company, and their respective
affiliates
(collectively, the "Affiliated Entities" and each such entity,
including the
Company and Parent, an "Affiliated Entity") all secret or
confidential
information, knowledge or data relating to any of the Affiliated
Entities, and
their respective businesses, which he obtained during his
employment by the
Affiliated Entities, and all such information, knowledge or data
relating to the
Affiliated Entities, and their respective businesses, which he
obtains during
his service as a consultant hereunder, and which shall not be or
become public
knowledge (other than by acts by the Consultant or representatives
of the
Consultant in violation of this Agreement). After termination of
the Consulting
Term, the Consultant shall not, without the prior written consent
of Parent or
as may otherwise be required by law or legal process, communicate
or divulge any
such information, knowledge or data to anyone other than Parent and
those
designated by it.
4.
Nonsolicitation; Non-Competition; Full Force and Effect.
Notwithstanding
anything herein or in the Securityholders Agreement to the
contrary, the
Consultant acknowledges and agrees that (i) his obligations and the
Company's,
Parent's and their respective affiliates' rights under Section 9 of
the
Securityholders Agreement shall remain in full force and effect,
(ii) for the
avoidance of doubt, and notwithstanding anything to the contrary
in, and in no
way in limitation of, such Section 9, such obligations and rights
shall extend
to, and prohibit, the Consultant's engagement, directly or
indirectly, as an
employee, consultant, director or service provider with any entity
(or any
affiliate of such entity regardless of whether such affiliate is
engaged) that
is engaged or could reasonably become engaged in the procurement,
sale,
production or brokering of aluminum metal and its key raw material
inputs
including, without limitation, bauxite, alumina, primary aluminum
and related
products, and rolled aluminum products and (iii) for purposes of
such Section 9,
the "Restricted Period" shall mean the period commencing on the
Date of
Termination and ending on the third anniversary thereof. Section 9
of the
Securityholders Agreement (as modified by the immediately preceding
sentence) is
hereby incorporated into this Section 4 of this Agreement.
5.
Injunctive Relief. The Consultant acknowledges that the time,
scope,
geographic area and other provisions of Sections 3 and 4 of this
Agreement
(including, by incorporation, Section 9 of the Securityholders
Agreement, as
modified by Section 4 of this Agreement) (the "Covenants") have
been
specifically negotiated by sophisticated commercial parties and
agree that all
such provisions are reasonable under the circumstances of the
activities
contemplated by this Agreement. The Consultant acknowledges and
agrees that the
terms of the Covenants: (i) are reasonable in light of all of the
circumstances,
(ii) are sufficiently limited to protect the legitimate interests
of the
Affiliated Entities, (iii) impose no undue hardship on the
Consultant and (iv)
are not injurious to the public. The Consultant further
acknowledges and agrees
that the Consultant's breach of the provisions of the Covenants
will cause
Parent and the Company irreparable harm, which cannot be adequately
compensated
by money damages, and that if Parent or the Company elects to
prevent the
Consultant from breaching such provisions by obtaining an
injunction against the
Consultant, there is a reasonable probability of Parent or the
Company's
eventual success on the merits. The Consultant consents and agrees
that if the
Consultant commits any such breach or threatens to commit any
breach, Parent
and/or the Company shall be entitled to temporary and permanent
injunctive
relief from a court of competent jurisdiction, without posting any
bond or other
security and without the necessity of proof of actual damage, in
addition to,
and not in lieu of, such other remedies as may be available to
Parent and the
Company for such breach, including the recovery of money damages.
In the event
that the Covenants shall be determined by any court of competent
jurisdiction to
be unenforceable by reason of their extending for too great a
period of time or
over too great a geographical area or by reason of their being too
extensive in
any other respect, they shall be interpreted to extend only over
the maximum
period of time for which they may be enforceabl
