AMENDMENT NUMBER 1 TO SEVERANCE
PROTECTION AGREEMENT
THIS AMENDMENT
NUMBER 1 to SEVERANCE PROTECTION AGREEMENT (this
“Amendment”) is made as of December 1, 2008, by and
between Century Aluminum Company, a Delaware corporation (the
“Company”), and Wayne R. Hale (the
“Executive”).
RECITALS
A. The Company and the Executive are
parties to a Severance Protection Agreement, made as of March 1,
2007 (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:
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Amendment
with regard to Section 2.3(a). Section 2.3(a) of the Agreement is
deleted in its entirety and replaced as follows:
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“
2.3 . Change in Control . For
purposes of this Agreement, a “Change in Control” shall
mean any of the following events:
(a) An
acquisition 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);”
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Amendment
with regard to Confidential Information . A new section 3.1(f) of the
Agreement is hereby added in its entirety as follows:
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“(f)
Protection of Confidential Information
.
(i) The
Executive acknowledges that his work for the Company will give him
access to highly confidential information not available to the
public or competitors, including, without limitation, information
relating to research and development, marketing plans,
copyrightable material, trade secrets and other proprietary or
strategic information, which it would be impracticable for the
Company to effectively protect and preserve in the absence of this
Section 3.1(f) and the disclosure or misappropriation of which
could materially adversely affect the
Company. Accordingly, the Executive hereby
agrees:
(A) Except
as specifically permitted by this Section 3.1(f), the Executive
will not communicate or divulge to or use for the benefit of
himself or any other person, firm, association, or corporation,
without the prior written consent of the Company, any Confidential
Information (as defined herein) that may be communicated to,
acquired by or learned of by the Executive in the course of, or as
a result of, the Executive's employment with the Company or any of
its affiliates. As used herein, " Confidential
Information " shall mean information not generally known about
the Company and its affiliates, services and products, whether
written or not, including, without limitation, information relating
to research, development, purchasing, marketing plans, computer
software or programs, any copyrightable material, trade secrets and
proprietary information, including, but not limited to, customer
lists.
(B) All
Confidential Information which is communicated to, acquired by or
learned of by the Executive shall remain the sole property of the
Company or its affiliates.
(ii) The
confidentiality obligations in this Section 3.1(f) shall not apply
to Confidential Information which is or becomes generally available
to the public other than as a result of disclosure by the
Executive. If the Executive is required to make
disclosure of information subject to this Section 3.1(f) under any
court order, subpoena, or other judicial process, then, except as
prohibited by law, the Executive will promptly notify the Company
thereof, take all reasonable steps requested by the Company to
defend against the compulsory disclosure and permit the Company to
control with counsel of its choice any proceeding relating to the
compulsory disclosure.
(iii) Upon
request by the Company, the Executive agrees to deliver promptly to
the Company at the termination of the Executive's employment, or at
such other times as the Company may request, all memoranda, notes,
plans, records, reports and other documents (and all copies
thereof) containing Confidential Information which the Executive
may then possess or have under his control.”
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Section
409A .
The Agreement is amended
to add the following new Section 15 at the end thereof, effective
on the Effective Date:
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(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 benefi
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