EMPLOYMENT AGREEMENT: E. JACK GATES



 





Exhibit 10.9




EMPLOYMENT AGREEMENT




     AGREEMENT, made as of the 14th day of October 2003, by and between Century
Aluminum Company, a Delaware corporation (the “Company”), and E. Jack Gates
(the “Executive”).



RECITALS




     A. The Company desires to employ Executive as Executive Vice President and
Chief Operating Officer; and



     B. Executive is willing to accept such employment on the terms and
conditions set forth in this Agreement.



     THE PARTIES AGREE as follows:



     1. Position and Term of Employment. Executive’s employment hereunder
shall commence as of October 14, 2003, and shall end December 31, 2005, unless
terminated sooner pursuant to Section 7 of this Agreement or extended by the
mutual agreement of the parties. During the term hereof, Executive shall be
employed as Executive Vice President and Chief Operating Officer of the Company
and shall devote his full business time, skill, attention and best efforts in
carrying out his duties and promoting the best interests of the Company.
Executive shall also serve as a director and/or officer of one or more of the
Company’s subsidiaries as may be requested from time to time by the Board of
Directors. Subject always to the instructions and control of the Board of
Directors of the Company, Executive shall report to the Chief Executive Officer
of the Company and shall be responsible for the day-to-day operations of the
Company and implementation of the Company’s short and long-range operating and
capital plans.



 









 





     Executive shall not at any time while employed by the Company or any of
its affiliates (as defined in the Amended and Restated Severance Protection
Agreement between the Company and Executive dated as of October 14, 2003, (the
“SPA”), incorporated herein by this reference), without the prior consent of
the Board of Directors, knowingly acquire any financial interests, directly or
indirectly, in or perform any services for or on behalf of any business, person
or enterprise which undertakes any business in substantial competition with the
business of the Company and its affiliates or sells to or buys from or
otherwise transacts business with the Company and its affiliates; provided that
Executive may acquire and own not more than five percent (5%) of the
outstanding capital stock of any public corporation which sells or buys from or
otherwise transacts business with the Company and its affiliates.



     2.1 Base Salary.



         (a) (i) Executive shall be paid an initial salary, effective October 1,
2003, at the monthly rate of $25,000, 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 $300,000.



            (ii) If for any reason other than Executive’s voluntary resignation, his
death, or termination for cause pursuant to Section 7(c), Executive does not
continue to be employed by the Company, Executive shall 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



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than one year’s Base Salary plus Highest Annual Bonus. The foregoing
amounts shall be paid to Executive over the greater of 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 subparagraph (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 (for reasons other than retirement as
permitted under the Company’s Employees Pension Plan) 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.



     2.2 Bonuses. Executive shall be eligible for an annual performance bonus
in amounts between 0 percent and 125 percent of his Base Salary upon
achievement by the Company of



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targets as determined by the Compensation Committee of the Board of
Directors of the Company.



     2.3 Expenses. The Company shall pay or reimburse Executive in accordance
with the Company’s normal practices any travel, hotel and other expenses or
disbursements reasonably incurred or paid by Executive hereunder in connection
with the services performed by Executive, in each case upon presentation by
Executive of itemized accounts of such expenditures or such other supporting
information as the Company may require.



     3.1 Incentive Plan. Executive shall be eligible for option grants and
performance share unit awards under the Company’s 1996 Stock Incentive Plan
(the “Plan”), and the Guidelines adopted to implement the Plan.



     3.2 Effect of Termination of Employment or Change in Control.



         (a) If Executive shall resign voluntarily 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 or, if
Executive retires, which may become vested upon retirement pursuant to the
terms of the Guidelines).



         (b) If Executive’s employment terminates due to death or disability, all
options which have not vested will accelerate and vest immediately, and, in the
event of Executive’s death, all option rights will transfer to Executive’s
representative. Executive or Executive’s representative may exercise all
unexercised options within three years after such death or disability or the
expiration date of the options, whichever is sooner.



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         (c) If Executive dies, becomes disabled or retires, performance shares
units awarded to such Executive pursuant to the Guidelines shall vest, be
valued and awarded pursuant to the terms of such Guidelines.



         (d) If there is a Change in Control, then all options and performance
share units that have not vested will accelerate and vest immediately.
Performance share units 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. 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.)



     4.1 Other Benefits. Executive shall be entitled to participate in life,
medical, dental, hospitalization, disability and life insurance benefit plans
made available by the Company to its senior executives and shall also be
eligible to participate in existing retirement or pension plans offered by the
Company to its senior executives, but, except as otherwise provided in Section
4.2, subject in each case to the terms and requirements of each such plan or
program.



     4.2 Retirement Benefits. Executive shall be entitled to receive
retirement benefits as follows:



         (a) Qualified Plan Benefits. The Executive shall be entitled to receive,
upon his retirement as provided for in the Company’s Employees’ Retirement Plan
(the “Qualified Plan”), benefits under the Qualified Plan computed as set forth
in that plan.



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         (b) Supplemental Executive Retirement Benefit. In addition to benefits
the Executive is entitled to receive under the Qualified Plan, Executive also
shall be entitled to receive an additional amount which shall be the amount, if
any, Executive would have received under the Qualified Plan had his benefits
under the Qualified Plan not been subject to the limitations on benefits and
contributions set forth in Sections 401 (a)(17) and 415 of the Code.



         (c) Vesting. The supplemental retirement benefit described in Section
4.2 (b), shall be vested in its entirety as of the date of this Agreement, and
upon the termination of Executive’s employment, he shall be entitled to receive
the same as provided in Section 4.2 (d).



         (d) Time and Method of Payment of Benefits. Supplemental retirement
benefit payments shall be made to Executive in the same manner as provided
under the Qualified Plans. Except as otherwise provided in the Qualified
Plans, no benefits shall be payable hereunder prior to death, disability or
termination of employment.



         (e) Prohibition on Assignment. Other than pursuant to the laws of
descent and distribution, Executive’s right to benefit payments under this
Section 4.2 are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or garnishment by
creditors of Executive or Executive’s beneficiary.



         (f) Source of Payments. All benefits under Section 4.2(b) shall be paid
in cash from the general funds of the Company, and no special or separate fund
shall be established or other segregation of assets made to assure such
payments; provided, however, that the Company may establish a bookkeeping
reserve to meet its obligations hereunder. It is the intention of the



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parties that the arrangements be unfunded for tax purposes and for
purposes of Title I of the Employee Retirement Income Security Act of 1974.



         (g) Executive’s Status. With respect to the supplemental retirement
benefit described in Section 4.2(b), Executive shall have the status of a
general unsecured creditor of the Company, and Section 4.2(b) of this Agreement
shall constitute a mere promise to make benefit payments in the future.



         (h) Survival of Benefit. The supplemental retirement benefit described
in Section 4.2(b) shall survive any termination (or non-renewal) of this
Agreement, including, without limitation, a termination pursuant to Section
7(c).



     5. Confidential Information. Except as specifically permitted by this
Section 5, and except as required in the course of his employment with the
Company, while in the employ of the Company or thereafter, 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) owned, or used by
the Company or any of its affiliates that may be communicated to, acquired by
or learned of by Executive in the course of, or as a result of, Executive’s
employment with the Company or any of its affiliates. All Confidential
Information relating to the business of the Company or any of its affiliates
which Executive shall use or prepare or come into contact with shall become and
remain the sole property of the Company or its affiliates.



     “Confidential Information” means information not generally known about the
Company and its affiliates, services and products, whether written or not,
including information relating to research, development, purchasing, marketing
plans, computer software or programs, any



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copyrightable material, trade secrets and proprietary information,
including, but not limited to, customer lists.



     Executive may disclose Confidential Information to the extent it (i)
becomes part of the public domain otherwise than as a result of Executive’s
breach hereof or (ii) is required to be disclosed by law. If Executive is
required by applicable law or regulation or by legal process to disclose any
Confidential Information, Executive will provide the Company with prompt notice
thereof so as to enable the Company to seek an appropriate protective order.



     Upon request by the Company, Executive agrees to deliver to the Company at
the termination of 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 that
Executive may then possess or have under his control.



     6. Assignment of Patents and Copyrights. Executive shall assign to the
Company all inventions and improvements within the existing or contemplated
scope of the Company’s business made by Executive while in the Company’s
employ, together with any such patents or copyrights as may be obtained
thereon, both domestic and foreign. Upon request by the Company and at the
Company’s expense, Executive will at any time during his employment with the
Company and after termination regardless of the reason therefor, execute all
proper papers for use in applying for, obtaining and maintaining such domestic
and foreign patents and/or copyrights as the Company may desire, and will
execute and deliver all proper assignments therefor.



     7. Termination.



         (a) This Agreement shall terminate upon Executive’s death.



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         (b) The Company may terminate Executive’s employment hereunder upon
fifteen (15) days’ written notice if in the opinion of the Board of Directors,
Executive’s physical or mental disability has continued or is expected to
continue for one hundred and eighty (180) consecutive days and as a result
thereof, Executive will be unable to continue the proper performance of his
duties hereunder. For the purpose of determining disability, Executive agrees
to submit to such reasonable physical and mental examinations, if any, as the
Board of Directors may request and hereby authorizes the examining person to
disclose his findings to the Board of Directors of the Company.



         (c) The Company may terminate Executive’s employment hereunder “for cause”
(as hereinafter defined). If Executive’s employment is terminated for cause,
Executive’s salary and all other rights not then vested under this Agreement
shall terminate upon written notice of termination being given to Executive.
As used herein, the term “for cause” means the occurrence of any of the
following:



            (i) Executive’s disregard of a direct, material order of the Board of
Directors of the Company, the substance of which order is (a) a proper duty of
Executive pursuant to this Agreement, (b) permitted by law and (c) otherwise
permitted by this Agreement, which disregard continues after fifteen (15) days’
opportunity and failure to cure; or



            (ii) Executive’s conviction for a felony or any crime involving moral
turpitude.



     8. Additional Remedies. Executive recognizes that irreparable injury will
result to the Company and to its business and properties in the event of any
breach by Executive of the non-compete provisions of Section 1, the
confidentiality provisions of Section 5 or the assignment provisions of Section
6 and that Executive’s continued employment is predicated on



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the covenants made by him pursuant to such Sections. In the event of any
breach by Executive of his obligations under said provisions, the Company shall
be entitled, in addition to any other remedies and damages available, to
injunctive relief to restrain any such breach by Executive or by any person or
persons acting for or with Executive in any capacity whatsoever and other
equitable relief.



     9. Successors and Assigns. This Agreement is intended to bind and inure
to the benefit of and be enforceable by Executive and the Company and their
respective legal representatives, successors and assigns. Neither this
Agreement nor any of the duties or obligations hereunder shall be assignable by
Executive.



     10. Governing Law; Jurisdiction. This Agreement 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.



     11. Headings. The paragraph headings used in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any purpose or in any way affect the interpretation of this Agreement.



     12. Severability. If any provision, paragraph or subparagraph of this
Agreement is adjudged by any court to be void or unenforceable in whole or in
part, this adjudication shall not affect the validity of the remainder of this
Agreement.



     13. Complete Agreement. This Agreement and the SPA embody the complete
agreement and understanding among the parties, written or oral, which may have
related to the subject matter hereof in any way and neither shall be amended
orally, but only by the mutual agreement of the parties in writing,
specifically referencing this Agreement or the SPA, as the



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case may be. To the extent there is an inconsistency between the terms of
this Agreement and the terms of the SPA, the Agreement which provides terms
most favorable to the Executive shall govern.



     14. Counterparts. This Agreement may be executed in one or more separate
counterparts, all of which taken together shall constitute one and the same
Agreement.



	 	 	 	 	 
	CENTURY ALUMINUM COMPANY	 	 
	 
	 	 	 	 
	By:

	 	/s/ Gerald J. Kitchen	 	 
	

	 	
 	 	 
	 
	 	 	 	 
	Title:

	 	Executive Vice President, General Counsel and

Chief Administrative Officer	 	 
	 
	 	 	 	 
	

	 	/s/ E. Jack Gates	 	 
	

	 	
 	 	 
	

	 	E. Jack Gates	 	 








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