|
|
|
|
|
|
|
|
|
|
Delaware
|
1-34474
|
13-3070826
|
(State or other jurisdiction of Incorporation)
|
(Commission File Number)
|
(IRS Employer Identification No.)
|
2511 Garden Road
Building A, Suite 200
Monterey, California
(Address of principal executive offices)
|
93940
(Zip Code)
|
(831) 642-9300
|
|
(Registrant's telephone number, including area code)
|
|
N/A
|
|
(Former name or former address, if changed since last report)
|
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
|
|
o
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
o
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
o
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
o
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
|
|
|
|
|
|
|
|
|
|
•
|
replaced the “single trigger” change in control provision with a “double trigger” provision, such that awards will no longer automatically accelerate upon a change in control of the Company, but will now accelerate upon a qualifying termination of participant following a change in control;
|
•
|
eliminated a provision that previously allowed for pro rata vesting of awards in the event of a termination other than for cause, such that now all unvested awards will be forfeited upon such a termination;
|
•
|
changed a provision that previously provided for full vesting of time-vesting awards upon death or disability of a participant to now only allow for pro rata vesting upon such circumstances;
|
•
|
clarified that the maximum allowable payout under a performance-based award is equal to 200% of the target award; and
|
•
|
allowed for performance-based awards to be settled in cash or common stock of the Company, at the Committee's discretion.
|
Exhibit Number
|
Description
|
10.1
|
Amended and Restated 1996 Stock Incentive Plan
|
10.2
|
Amended and Restated Long-Term Incentive Plan
|
10.3
|
Form of Long-Term Incentive Plan Performance Unit Award Agreement
|
10.4
|
Form of Long-Term Incentive Plan Time-Vesting Performance Share Unit Award Agreement
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CENTURY ALUMINUM COMPANY
|
|
Date:
|
March 25, 2013
|
By:
|
/s/ Jesse E. Gary
|
|
|
|
|
Name:
|
Jesse E. Gary
|
|
|
|
Title:
|
Executive Vice President, General Counsel and Secretary
|
Exhibit Number
|
Description
|
10.1
|
Amended and Restated 1996 Stock Incentive Plan
|
10.2
|
Amended and Restated Long-Term Incentive Plan
|
10.3
|
Form of Long-Term Incentive Plan Performance Unit Award Agreement
|
10.4
|
Form of Long-Term Incentive Plan Time-Vesting Performance Share Unit Award Agreement
|
|
|
|
|
|
|
|
|
|
|
I.
|
PURPOSES AND SCOPE OF PLAN
|
1.
|
NAME
|
2.
|
PURPOSE
|
(1)
|
a material adverse change in the recipient's status, title, position or responsibilities (including reporting responsibilities) as in effect at any time within one year preceding the date of a Change in Control or at any time thereafter; the assignment to the recipient of any duties or responsibilities which are inconsistent with his status, title, position or responsibilities as in effect at any time within one year preceding the date of a Change in Control or at any time thereafter; or any removal of the recipient from or failure to reappoint or reelect him to any of such offices or positions, except in connection with the termination of his employment for disability, Cause, as a result of his death or by the recipient other than for Good Reason,
|
(2)
|
a material reduction in the recipient's annual salary or target annual bonus opportunity as in effect at any time within one year preceding the date of a Change in Control or at any time thereafter,
|
(3)
|
the Employer's requiring the recipient to be based at any place outside a 30-mile radius from the offices where he was based prior to the Change in Control (other than in connection with the relocation of the Company's headquarters from Monterey, CA to
|
(4)
|
the failure by the Company to (a) provide the recipient with compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under a material employee benefit plan, program and practice in which the recipient was participating at any time within one year preceding the date of a Change in Control or at any time thereafter, or (b) permit the recipient to participate in any or all incentive, savings, retirement plans and benefit plans, fringe benefits, practices, policies and programs applicable generally to other similarly situated employees of the Company and affiliated companies of the Company (including any successors to the Company and affiliated companies of the Company),
|
(5)
|
any material breach by the Company of any provision of this Plan,
|
(6)
|
any purported termination of the recipient's employment for Cause by the Company which does not comply with the terms hereof, or
|
(7)
|
the failure of the Company to obtain an agreement, satisfactory to the recipient, from any successors and to assume and agree to perform this Plan.
|
4.
|
TERM
|
5.
|
LTIP AWARD
|
1.
|
On or before March 30 (or such later date as may be determined by the Committee) of the first calendar year of each Plan Period, the Committee, based on the recommendations of and in consultation with the Chief Executive Officer, as well as the Committee's independent analysis, shall, in its discretion, establish a list of Participants eligible to participate in the LTIP for the subject Plan Period and shall grant to each Participant an award under the LTIP with respect to that Plan Period (an “LTIP Award”).
|
2.
|
If an employee is selected as a Participant at any time other than on or before the beginning of a Plan Period, the Committee may, in its discretion, based on the recommendations of and in consultation with the Chief Executive Officer, as well as the Committee's independent analysis, award such Participant a full or pro-rated LTIP Award for that Plan Period.
|
3.
|
Each Participant's LTIP Award shall be expressed in dollars as a percentage of his or her base salary in effect as of the first day of the Plan Period to which said LTIP Award pertain (the “LTIP Award Value”).
|
4.
|
The Committee shall determine the percentage of any LTIP Award that shall be in the form of Performance Units and in the form of Time-vesting Performance Share Units at the time the applicable LTIP Award is granted.
|
1.
|
Grant of Award Opportunity
|
a.
|
The Target Award for each Participant shall be established by the Committee as the product obtained by multiplying the LTIP Award Value by the percentage of the LTIP Award that has been granted in the form of Performance Units.
|
b.
|
The Committee shall establish Performance Measures and the relative weighting for each Performance Measure, based on the recommendations of, and in consultation with, the Chief Executive Officer, as well as the Committee's independent analysis.
|
c.
|
For each Performance Measure that warrants the establishment of numerical goals, the Committee shall establish three levels of numerical goals: threshold, target, and outstanding, and the number of Performance Units that will be earned upon the achievement of each such goal, based on the recommendations of, and in consultation with, the Chief Executive Officer, as well as the Committee's independent analysis.
|
d.
|
With respect to strategic Performance Measures, high level goals will be described by the Committee qualitatively and the number of Performance Units that will be earned upon achievement of threshold, target and outstanding levels, based on the recommendations of, and in consultation with, the Chief Executive Officer, as well as the Committee's independent analysis.
|
a.
|
During the calendar year that begins immediately following the end of a Plan Period, the Committee shall, based on the recommendations of, and in consultation with, the Chief Executive Officer, as well as the Committee's independent analysis, determine in its discretion the extent to which Performance Measure goals have been met for that Plan Period (including whether adjustments to such goals and/or actual results shall be made). In doing so, the Committee shall determine the amount of each Participant's Earned Performance Unit Award by measuring independently, at the conclusion of the Plan Period, Company achievement of Performance Measure goals for each Performance Measure for that Plan Period, and then taking the sum of the earned amounts for each Performance Measure. Earned Performance Unit Awards may equal from zero up to two times a Target Award.
|
b.
|
The Committee shall have full and complete discretion, in light of considerations deemed appropriate by the Committee, to modify, based on the recommendations of and in consultation with the Chief Executive Officer, as well as the Committee's independent analysis, any Earned Performance Unit Award to increase or decrease the amount otherwise payable hereunder. This discretion shall include the right to make adjustments to the Performance Measure goals and/or actual results, to determine that an Earned Performance Unit Award shall be zero, to determine that an Earned Performance Unit Award exceeds the number of Performance Units actually earned for a Plan Period, and to provide for payment of an Earned Performance Unit Award up to 200% of the Target Award.
|
3.
|
Payment.
|
a.
|
Earned Performance Unit Awards shall be paid, at the discretion of the Committee, in cash, at a rate of $1.00 per each Earned Performance Unit, or in shares of the
|
b.
|
A pro-rated portion of an Earned Performance Unit Award shall be paid to a Participant whose employment by the Company or a Subsidiary is terminated prior to the end of a Plan Period due to death, Disability, Retirement or other reason approved by the Committee. The pro-rated portion payable to such Participant shall be determined by multiplying his or her Earned Performance Unit Award by a fraction, the numerator of which is the number of days of his or her full employment by the Company or a Subsidiary during such Plan Period and the denominator of which is the total number of days in such Plan Period. Payment of a pro-rated Earned Performance Unit Award will be made when Earned Performance Unit Awards are otherwise paid under the LTIP; provided that if a Participant's employment is terminated prior to the end of a Plan Period due to death, such Participant's Earned Performance Unit Award shall be deemed to be equal to such Participant's Target Award (subject to proration in accordance with the above) and payment shall occur as soon as administratively practicable following such death. The remaining portion of any Earned Performance Unit Award will be canceled and forfeited.
|
c.
|
A Participant shall forfeit all opportunity to receive payment of Performance Units in the event of termination of his or her employment by the Company or a Subsidiary prior to the last day of the Plan Period for any reason other than death, Disability, Retirement or other reason approved by the Committee.
|
C.
|
Time-vesting Performance Share Units
|
1.
|
Amount
|
2.
|
Payment
|
a.
|
Time-vesting Performance Share Units granted to a Participant shall vest in full upon the last day of the Plan Period in respect of which such Time-vesting Performance Share Units are granted.
|
b.
|
Upon a Participant's termination of employment by the Company or a Subsidiary due to Retirement, death, Disability or other reason approved by the Committee, Time-vesting Performance Share Units granted to a Participant shall vest pro rata based on the number of days of the Plan Period which have passed prior to such
|
c.
|
Vested Time-vesting Performance Share Units will be settled for an equivalent number of shares of Common Stock of the Company as soon as practicable but no later than 2-1/2 months after the date of vesting (or within such other time period as may be required under Section 409A);
provided however,
that the Time-vesting Performance Share Units of a Participant who vests upon Retirement, Disability or other reason approved by the Committee shall be settled within 2-1/2 months after the last day of the Plan Period (or within such other time period as may be required under Section 409A);
provided further,
that the Time-vesting Performance Share Units of a Participant who vests upon death shall be settled as soon as administratively practicable following such death.
|
d.
|
A Participant shall forfeit all opportunity to vest in or receive payment for his or her Time-vesting Performance Share Units in the event of termination of employment by the Company or a Subsidiary prior to the last day of the Plan Period for any reason other than death, Disability, Retirement or other reason approved by the Committee.
|
D.
|
Change in Control
|
1.
|
Time-vesting Performance Share Units
. If, prior to the end of the applicable Plan Period, Participant (i) is Terminated Other than for Cause or (ii) terminates Participant's employment for Good Reason, in each case within two years following a Change in Control of the Company, all Time-vesting Performance Share Units outstanding hereunder shall vest pursuant to the provisions of the Stock Incentive Plan, and shall be settled as soon as practicable but not later than 2-1/2 months after such termination (or within such other time period as may be required under Section 409A). Any event or condition described above which occurs prior to a Change in Control but which the recipient reasonably demonstrates (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control (in each case whether or not a change in control occurs), shall be treated as if it occurred following the Change in Control for purposes of this LTIP, notwithstanding that it occurred prior to the Change in Control.
|
2.
|
Performance Units
. Notwithstanding anything to the contrary stated in any Performance Unit Award Agreement or the provisions of Section 6.B of the LTIP, if, prior to the end of the applicable Plan Period, Participant (i) is Terminated Other than for Cause or (ii) terminates Participant's employment for Good Reason, in each case within two years following a Change in Control, all Performance Units outstanding hereunder shall become Earned Performance Unit Awards in an amount equal to no less than the Target Award, or a higher multiple of up to 200% of the Target Award as may be determined by the Committee for one or more Participants in light of considerations deemed appropriate by the Committee. Payment of Earned Performance Unit Awards shall be made as soon as practicable but not later than 2-1/2 months after such termination (or within such other time period as may be required under Section 409A). Any event or condition described above which occurs prior to a Change in Control but which the recipient reasonably demonstrates (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control (in each case whether or not a change in control occurs), shall be treated as if it occurred following the Change in Control for purposes of this LTIP, notwithstanding that it occurred prior to the Change in Control.
|
3.
|
Section 409A
. Notwithstanding the above, settlement of Performance Units and Time-vesting Performance Share Units shall not be accelerated unless the Change in Control is also a Section 409A Change in Control.
|
4.
|
Severance-Protection Agreements
. The acceleration of vesting, settling and payment of Time-vesting Performance Share Units and Performance Units pursuant to the LTIP and any Performance Unit Award Agreement or any Time-vesting Performance Share Unit Award Agreement hereunder shall not supersede, and shall be subject to, such greater rights as a Participant may be entitled to under any severance-protection or other agreement with the Company, subject to compliance with the requirements of Section 409A.
|
E.
|
Recoupment
|
A.
|
Each grant of an LTIP Award shall be evidenced by (1) a Performance Unit Award Agreement, and (2) a Time-vesting Performance Share Unit Award Agreement, as applicable, each of such agreements to be executed on behalf of the Company by an officer designated by the Committee and to be accepted by the Participant who receives such LTIP Award. Each such agreement shall state that the portion of the LTIP Award to which it pertains is subject to all the terms and provisions of the LTIP and, in the case of Time-vesting Performance Share Units, the Stock Incentive Plan, and shall have such terms as the Committee shall approve, consistent with the provisions of the LTIP and, as applicable, the Stock Incentive Plan.
|
B.
|
The Committee has full power and authority to amend, modify, terminate, construe, interpret and administer the LTIP. Any interpretation of the LTIP by the Committee or any action or decision by the Committee administering the LTIP shall be final and binding on all Participants.
|
C.
|
In carrying out its duties hereunder the Committee may in its discretion (1) appoint such committees comprised of some or all of the members of the Committee, with such powers as the Committee shall in each case determine, (2) authorize one or more members of the Committee or any agent to execute or deliver any instrument or instruments in behalf of the Committee, and (3) employ such counsel, agents and other services as the Committee may require.
|
10.
|
EMPLOYEE RIGHTS
|
11.
|
SECTION 409A
|
12.
|
GOVERNING LAW AND VALIDITY
|
1.
|
Performance Units.
|
(a)
|
Target Award.
The Company hereby awards to Participant ______ Performance Units as a Target Award for the Plan Period extending from ________________________________ (the “Plan Period”).
|
(b)
|
Earned Performance Unit Award.
The number of Performance Units actually earned will be based on the Performance Measures established for the Plan Period under the LTIP.
|
(c)
|
Value and Payment of Earned Performance Unit Awards.
The value payable to Participant for an Earned Performance Unit Award shall equal $1 for each Performance Unit actually earned. Earned Performance Unit Awards shall be paid at the discretion of the Committee, in cash, at a rate of $1.00 per each Earned Performance Unit, or in shares of the Company's common stock in an amount equal to the number of Earned Performance Units divided by the average closing price of the Company's common stock for the 20 trading days immediately preceding the vesting date. Payment shall be made during the calendar year that begins immediately after the end of the Plan Period.
|
(d)
|
Termination of Employment
. Termination of employment with the Company and its Subsidiaries prior to the end of the Plan Period for any reason other than death, Disability, Retirement, Termination Other than for Cause, or other reason approved by the Committee shall result in forfeiture of all opportunity
|
2.
|
Change of Control
. Notwithstanding anything to the contrary in this Agreement, if, prior to the end of the applicable Plan Period, Participant (i) is Terminated Other than for Cause or (ii) terminates Participant's employment for Good Reason, in each case within two years following a Change of Control of the Company, all Performance Units outstanding hereunder shall vest and become payable in an amount equal to the Target Award, or a multiple of up to 200% of the Target Award as may be determined by the Committee in light of considerations deemed appropriate by the Committee. Any event or condition described above which occurs prior to a Change in Control but which the recipient reasonably demonstrates (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control (in each case whether or not a change in control occurs), shall be treated as if it occurred following the Change in Control for purposes of this LTIP, notwithstanding that it occurred prior to the Change in Control. Payment of vested Performance Units shall be made as soon as practicable but not later than 2-1/2 months after the Change of Control (or within such other time period as may be required under Section 409A); provided, however, that payment of the Performance Units shall not be accelerated unless the Change of Control 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 of the Internal Revenue Code of 1986, as amended (the “Code”) as determined pursuant to Treasury Regulations or other applicable guidance issued under Section 409A. Notwithstanding the provisions of Section 11, the acceleration of vesting of Performance Units pursuant to the LTIP and this provision shall not supersede, and shall be subject to, such greater rights as Participant may be entitled to under any severance protection or other agreement with the Company.
|
3.
|
Designation of Beneficiaries.
On a form provided to the Company, Participant may designate a beneficiary or beneficiaries to receive, in the event of Participant's death, all or part of any amounts to be distributed to Participant under the Agreement.
|
4.
|
Stock Certificates
. Upon the settlement of any Earned Performance Units in shares of the Company's common stock (and subject to payment by Participant of all applicable withholding taxes pursuant to Section 10), the Company shall cause a stock certificate to be delivered or book entry to be made covering the appropriate number of shares registered on the Company's books in the name of Participant. All shares of the Company's common stock which are issued under this Agreement shall be fully paid and non-assessable.
|
5.
|
Data Privacy
. Participant hereby acknowledges that to perform its requirements under the LTIP, the Company and its Subsidiaries may process sensitive personal data about Participant. Such data include but are not limited to the information provided above and any changes thereto and other appropriate personal and financial data about Participant. Participant hereby gives explicit consent to the Company to process any such personal data and/or sensitive personal data. The legal persons for whom such personal data are intended are the Company and any of its Subsidiaries and representatives, including consultants. Participant has been informed of his/her right of access and correction to his/her personal data by applying to the Company's director of human resources.
|
6.
|
Employee Rights.
Participant may not assign or transfer his or her rights under the Agreement except as expressly provided under the LTIP. The Agreement does not create a contract of employment between Participant and the Company or any of its Subsidiaries, and does not give Participant the right to be retained in the employment of the Company or any of its Subsidiaries; nor does it imply or confer any other employment rights, or confer any ownership, security or other rights to Company assets. The LTIP Award provided herein is solely within the discretion of the Company, is not intended to constitute a part of Participant's wages, ongoing or otherwise, and no inference should be drawn or permitted that the grant herein suggests Participant will receive any subsequent grants. If any subsequent grant is in fact made, it shall be in the sole discretion of the Company and the Company is under no obligation to make any future grant or to consider making any future grant. The value of the Performance Units awarded under the Agreement (either on the date of LTIP Award or at the time of vesting) shall not be included as compensation or earnings for purposes of any other benefit plan offered by the Company.
|
7.
|
Recoupment.
The LTIP Award provided under the Agreement shall be subject to recoupment by the Company under and in accordance with the provisions of any Incentive Compensation Recoupment Policy that may be adopted by the Board from time to time.
|
8.
|
Delaware Law.
This Agreement and all related matters shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, and any applicable federal law. The invalidity or illegality of any provision herein shall not be deemed to affect the validity of any other provision.
|
9.
|
Section 409A.
Participant acknowledges that Participant's receipt of certain benefits under this Agreement may be subject to Section 409A of the Code. If the Company determines that the Participant is a “specified employee” (as defined under Section 409A) at the time of termination of employment, payment shall be delayed until six months and one day following termination of employment if the Company determines that such delayed payment is required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code. In addition, to the extent that Participant's benefits under this Agreement are payable upon a termination of employment and are subject to Section 409A, a “termination of employment” shall be interpreted to mean a “separation from service” which qualifies as a permitted payment event under Section 409A of the Code.
|
10.
|
Withholding.
The Company and its Subsidiaries shall have the right to deduct from any payments of any kind due to the recipient hereunder, or to otherwise require payment by the recipient, of the amount of any federal, state or local taxes required by law to be withheld with respect to the amounts earned under the Agreement. In addition, subject to and in accordance with the provisions of the Stock Incentive Plan and the approval of the Company, the Participant may elect to satisfy the withholding requirement with respect to any Earned Performance Units settled in shares of the Company's common stock by authorizing and directing the Company to withhold shares of common stock of the Company having a fair market value equal to the minimum required statutory withholding amount with respect thereto, in accordance with such procedures as the Company may provide. The Company is not responsible for any tax consequences to Participant relating to the Agreement. Participant alone is responsible for these tax obligations, and hereby agrees to indemnify the Company from any loss or liability it suffers as a result of the failure by Participant to pay such tax obligations
|
11.
|
Entire Agreement.
The LTIP and this Agreement constitute the entire agreement between the Company and Participant pertaining to the subject matter hereof, supersedes all prior or contemporaneous written or verbal agreements and understandings between the parties in connection therewith, and shall not be modified or amended except by written instrument duly signed by the parties. No waiver by either party of any default under the Agreement shall be deemed a waiver of any later default. The various provisions of the Agreement are severable in their entirety. Any determination of invalidity or unenforceability of any one provision shall have no effect on the continuing force and effect of the remaining provision. The Committee shall have the sole and complete authority and discretion to decide any questions concerning the application, interpretation or scope of any of the terms and conditions of the Agreement, and its decisions
|
Century Aluminum Company
|
|
|
|
|
|
|
|
By
|
|
|
|
|
Name, Title
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Participant Signature
|
|
|
|
|
|
|
|
Participant Printed Name
|
|
|
|
|
|
|
|
|
1.
|
Time-vesting Performance Share Units
.
|
(a)
|
Award
. The Company hereby awards to Participant ______ Time-vesting Performance Share Units pursuant to, and subject to all of the terms and provisions of the Company's Stock Incentive Plan, for the Plan Period.
|
(b)
|
Vesting and Payment.
The Time-vesting Performance Share Units will vest in full upon the last day of the Plan Period. Upon a Participant's termination of employment by the Company or a Subsidiary due to Retirement, death, Disability or other reason approved by the Committee, Time-vesting Performance Share Units granted to a Participant shall vest pro rata based on the number of days of the Plan Period which have passed prior to such termination, or in such greater amount as may be determined by the Committee in its sole discretion. The remaining portion of any Time-vesting Performance Share Units will be canceled and forfeited. The vested Time-vesting Performance Share Units will be settled for an equivalent number of shares of common stock of the Company within 2-1/2 months after the last day of the Plan Period, or, in the case of death, as soon as administratively practicable following such death. Participant shall forfeit all opportunity to vest in or receive payment for the Time-vesting Performance Share Units upon a termination of employment with the Company and its Subsidiaries prior to the last day of the Plan Period for any reason other than death, Disability, Retirement or other reason approved by the Committee.
|
2.
|
Change of Control
. Notwithstanding anything to the contrary in this Agreement (but subject to the following sentence), if, prior to the end of the applicable Plan Period, Participant (i) is Terminated Other than for Cause or (ii) terminates Participant's employment for Good Reason, in each case within two years following a Change of Control of the Company, the Time-vesting Performance Share Units shall vest pursuant to the provisions of the Stock Incentive Plan and shall be settled as soon as practicable but not later than 2-1/2 months after
|
3.
|
Change in Common Stock or Corporate Structure
. Upon any stock dividend, stock split, combination or exchange of shares of common stock, recapitalization or other change in the capital structure of the Company, corporate separation or division (including, but not limited to, split-up, spin-off or distribution to Company stockholders other than a normal cash dividend), sale by the Company of all or a substantial portion of its assets, rights offering, merger, consolidation, reorganization or partial or complete liquidation, or any other corporate transaction or event having an effect similar to any of the foregoing, the number of Time-vesting Performance Share Units subject to the LTIP Award granted hereunder shall be equitably and appropriately adjusted, and the securities subject to the Time-vesting Performance Share Units shall be equitably and appropriately substituted for new securities or other consideration, as determined by the Committee in accordance with the provisions of the Stock Incentive Plan. Any such adjustment made by the Committee shall be conclusive and binding upon the Participant, the Company and all other interested persons.
|
4.
|
Designation of Beneficiaries.
On a form provided to the Company, Participant may designate a beneficiary or beneficiaries to receive, in the event of Participant's death, all or part of any amounts to be distributed to Participant under the Agreement.
|
5.
|
Stock Certificates
. Upon the settlement of the Time-vesting Performance Share Units (and subject to payment by Participant of all applicable withholding taxes pursuant to Section 11), the Company shall cause a stock certificate to be delivered or book entry to be made covering the appropriate number of shares registered on the Company's books in the name of Participant. All Time-vesting Performance Share Units which are issued under this Agreement shall be fully paid and non-assessable.
|
6.
|
Voting, Dividends
. Participant shall have no rights as a stockholder (including no rights to vote or receive dividends or distributions) with respect to any Time-vesting Performance Share Units until Participant becomes a stockholder upon the settlement of such Time-vesting Performance Share Units in accordance with the terms and provisions of the Agreement and the Stock Incentive Plan. Notwithstanding the foregoing, Participant will be entitled to receive dividend equivalents with respect to the Time-vesting Performance Share Units as provided in this Section 6. Upon an ordinary cash dividend on the shares of common stock of the Company the record date of which is prior to the settlement or forfeiture of any Time-vesting Performance Share Units, the Company shall allocate for Participant an amount equal to the amount of such ordinary cash dividend multiplied by the number of Time-vesting Performance Share Units, and the Company shall pay immediately to Participant any such amounts upon the vesting and settlement of the corresponding Time-vesting Performance Share Units, provided that any rights to receive such amounts shall be forfeited upon the forfeiture of the corresponding Time-vesting Performance Share Units.
|
7.
|
Data Privacy
. Participant hereby acknowledges that to perform its requirements under the LTIP and the Stock Incentive Plan, the Company and its Subsidiaries may process sensitive personal data about Participant. Such
|
8.
|
Employee Rights.
Participant may not assign or transfer his or her rights under the Agreement except as expressly provided under the Stock Incentive Plan. The Agreement does not create a contract of employment between Participant and the Company or any of its Subsidiaries, and does not give Participant the right to be retained in the employment of the Company or any of its Subsidiaries; nor does it imply or confer any other employment rights, or confer any ownership, security or other rights to Company assets. The LTIP Award provided herein is solely within the discretion of the Company, is not intended to constitute a part of Participant's wages, ongoing or otherwise, and no inference should be drawn or permitted that the grant herein suggests Participant will receive any subsequent grants. If any subsequent grant is in fact made, it shall be in the sole discretion of the Company and the Company is under no obligation to make any future grant or to consider making any future grant. The value of the Time-vesting Performance Share Units awarded under the Agreement (either on the date of LTIP Award or at the time of vesting) shall not be included as compensation or earnings for purposes of any other benefit plan offered by the Company.
|
9.
|
Recoupment.
The LTIP Award provided under the Agreement shall be subject to recoupment by the Company under and in accordance with the provisions of any Incentive Compensation Recoupment Policy that may be adopted by the Board from time to time.
|
10.
|
Delaware Law.
This Agreement and all related matters shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, and any applicable federal law. The invalidity or illegality of any provision herein shall not be deemed to affect the validity of any other provision.
|
11.
|
Section 409A.
Participant acknowledges that Participant's receipt of certain benefits under this Agreement may be subject to Section 409A of the Code. If the Company determines that the Participant is a “specified employee” (as defined under Section 409A) at the time of termination of employment, payment shall be delayed until six months and one day following termination of employment if the Company determines that such delayed payment is required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code. In addition, to the extent that Participant's benefits under this Agreement are payable upon a termination of employment and are subject to Section 409A, a “termination of employment” shall be interpreted to mean a “separation from service” which qualifies as a permitted payment event under Section 409A of the Code.
|
12.
|
Withholding.
The Company and its Subsidiaries shall have the right to deduct from any payments of any kind due to the recipient hereunder, or to otherwise require payment by the recipient, of the amount of any federal, state or local taxes required by law to be withheld with respect to the amounts earned under the Agreement. In addition, subject to and in accordance with the provisions of the Stock Incentive Plan and the approval of the Company, the Participant may elect to satisfy the withholding requirement with respect to the Time-vesting Performance Share Units by authorizing and directing the Company to withhold shares of common stock of the Company having a fair market value equal to the minimum required statutory withholding amount with respect thereto, in accordance with such procedures as the Company may provide. The Company is not responsible for any tax consequences to Participant relating to the Agreement. Participant alone is responsible for these tax obligations, and hereby agrees to indemnify the Company from any loss or liability it suffers as a result of the failure by Participant to pay such tax obligations.
|
13.
|
Entire Agreement; Interpretation; Amendment.
The LTIP, Stock Incentive Plan and this Agreement constitute the entire agreement between the Company and Participant pertaining to the subject matter hereof, supersedes all prior or contemporaneous written or verbal agreements and understandings between the parties in connection therewith, and shall not be modified or amended except by written instrument duly signed by the parties. No
|
Century Aluminum Company
|
|
|
|
|
|
|
|
By
|
|
|
|
|
Name, Title
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Participant Signature
|
|
|
|
|
|
|
|
Participant Printed Name
|
|
|
|
|
|
|
|
|