rrn2.htm


    AMENDMENT
NUMBER 1 TO AMENDED AND RESTATED SEVERANCE PROTECTION AGREEMENT

     

    THIS
AMENDMENT NUMBER 1 to AMEDNED AND RESTATED SEVERANCE PROTECTION AGREEMENT (this
“Amendment”) is made as of December 1, 2008, by and between Century Aluminum
Company, a Delaware corporation (the “Company”), and Robert R. Nielsen (the
“Executive”).

     

    RECITALS

     

    A.  The Company and the
Executive are parties to an Amended and Restated Severance Protection Agreement,
made as of March 19, 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:

     

    
      	
              1.  

            	
              Amendment with regard to
      Section 2.3(a).  Section 2.3(a) of the Agreement is
      deleted in its entirety and replaced as
follows:

            


    

     

    “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);”

     

    
      	
              2.  

            	
              Amendment with regard to
      Confidential Information.  A new section 3.1(f) of the
      Agreement is hereby added in its entirety as
  follows:

            


    

    


     

    “(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.”

     

     

    
      	
              3.  

            	
              Section
      409A.  The
      Agreement is amended to add the following new Section 15 at the end
      thereof, effective on the Effective
Date:

            


    

     

    “15.   Section 409A.

     

    (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 or provided at the time specified in
the Agreement, then the payment or provision thereof shall be postponed to 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, equal to the prime rate as set forth in the
Eastern edition of the Wall Street Journal on the date of
termination.  If a benefit subject to the delayed payment rules of
this Section 15(c) is to be provided other than by the payment of money to the
Executive, then the provision of such benefit prior to the Delayed Payment Date
is conditioned on pre-payment by the Executive to the Company of the full
taxable value of the benefit and following the Delayed Payment Date, the Company
shall repay the Executive for the payments made by the Executive pursuant to the
terms of this sentence which would otherwise not have been required of the
Executive.

     

    (d)           Subject
to Section 15(c), and to the extent required to comply with Section 409A, a
portion of the amount provided for in Section 3.1(c)(ii) shall be paid at the
same time and in the same form as required for the payment of severance under
the Executive’s Employment Agreement, rather than a single lump sum, to the
extent such portion would have been payable in such alternative form under the
Executive’s Employment Agreement in the absence of a Change in Control, and the
Executive’s date of termination does not occur within two years following a
Change in Control that satisfies the requirements for a change in the ownership
or effective control of the Company, or a change in the ownership of a
substantial portion of the assets of the Company, under Section 409A, as
determined pursuant to the applicable guidance thereunder.  If payment
cannot be made in a lump sum pursuant to this provision, each installment
payment shall include interest for the period of delay, compounded monthly,
equal to the prime rate as set forth in the Eastern edition of the Wall Street
Journal on the date when the lump sum payment would otherwise have been
made.]

     

    (e)           Notwithstanding
any provision of this Agreement to the contrary, the time of payment of any
performance shares that are subject to Section 409A as “nonqualified deferred
compensation” and that vest pursuant to this Agreement shall not be accelerated
unless such acceleration complies with the requirements of Section 409A of the
Code, as determined pursuant to applicable guidance issued
thereunder.  If the payment of vested performance shares cannot be
accelerated pursuant to this provision, payment shall include interest for the
period of delay, compounded monthly, equal to the prime rate as set forth in the
Eastern edition of the Wall Street Journal on the date when payment of the
vested performance shares would otherwise have been made.

     

    (f)           The
Executive’s date of termination for purposes of determining the date that any
payment or benefit that is treated as nonqualified deferred compensation under
Code Section 409A is to be paid or provided (or in determining whether an
exemption to such treatment applies), and for purposes of determining whether
the Executive is a “Specified Employee” on the date of termination, shall be the
date on which the Executive has incurred a “separation from service” within the
meaning of Section 409A(a)(2)(A)(i) and applicable guidance
thereunder.

     

    (g)           To
the extent the Company is required pursuant to this Agreement to reimburse
expenses incurred by the Executive, and such reimbursement obligation is subject
to Section 409A of the Code, the Company shall reimburse any such eligible
expenses by the end of the calendar year next following the calendar year in
which the expense was incurred, subject to any earlier required deadline for
payment otherwise applicable under this Agreement; provided, however, that the
following sentence shall apply to any tax gross-up payment (if applicable) to
the extent subject to Section 409A.  Any such tax gross-up payment
will be made by the end of the calendar year next following the calendar year in
which the Executive remits the related taxes, and any required reimbursement of
expenses incurred due to a tax audit or litigation addressing the existence or
amount of a tax liability will be made by the end of the calendar year next
following the calendar year in which the taxes that are the subject of the audit
or litigation are remitted to the taxing authority, or where as a result of such
audit or litigation no taxes are remitted, the end of the calendar year next
following the calendar year in which such audit is completed or there is a final
and nonappealable settlement or other resolution of the litigation, in each case
subject to any earlier required deadline for payment otherwise applicable under
this Agreement,  In addition, to the extent subject to Section 409A,
the right to reimbursement or in-kind benefits under this Agreement shall not be
subject to liquidation or exchange for another benefit, notwithstanding any
contrary provision of this Agreement.

     

    (h)           To
the extent the Company is required pursuant to this Agreement to provide
continued employee benefits following termination of employment, the provision
of such benefits shall be structured in a manner that complies with Section
409A.   Any offset of the Company’s obligation to provide
benefits under this Agreement as a result of the provision of benefits pursuant
to a subsequent employer’s benefit plans, and any offset of the Company’s
obligation to provide severance or termination pay under other agreements or
arrangements as a result of the provision of pay and benefits under this
Agreement, shall be structured in a manner that does not result in a change in
the time or form of payment of non-qualified deferred compensation that violates
Section 409A.

     

    (i)           The
Executive consents to be bound by the terms of the Supplemental Retirement
Income Benefit Plan as amended by the Company for purposes of Section
409A.”

     

    
      	
              4.  

            	
              Incorporation of
      Amendment and Agreement.  Except as explicitly set forth
      in this Amendment, the parties do not intend to modify the terms and
      conditions of the Agreement, those terms and conditions shall remain in
      full force and effect, and they shall be incorporated into this Amendment
      by this reference.

            


    

    


    
      	
              5.  

            	
              Miscellaneous.

            


    

    


    
      	
              A.  

            	
              This
      Amendment may be executed in any number of counterparts and by different
      parties hereto in separate counterparts, each of which when so executed
      and delivered shall be deemed to be an original and all of which
      counterparts taken together shall constitute but one and the same
      instrument.

            


    

    


    
      	
              B.  

            	
              Wherever
      possible, each provision of this Amendment shall be interpreted in such
      manner as to be effective and valid under applicable law, but if any
      provision of this Amendment shall be prohibited by or invalid under
      applicable law, such provision shall be ineffective only to the extent of
      such prohibition or invalidity, without invalidating the remainder of such
      provision or the remaining provisions of this
  Amendment.

            


    

    


    
      	
              C.  

            	
              This
      Amendment 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
      Amendment.

            


    

     

    IN WITNESS WHEREOF, this
Amendment has been executed effective as of the Effective Date.

     

    
      	CENTURY ALUMINUM COMPANY     	EXECUTIVE
	
               

              By:

            	
               

              /s/ Logan Kruger                    

            	
               

              By:

            	
               

              /s/ Robert R.
      Nielsen            

            
	Name:	Logan
    Kruger	Name:	Robert R.
      Nielsen
	Title:	President and Chief
      Executive Officer