CENX » Topics » Change in Control

These excerpts taken from the CENX 10-K filed Mar 2, 2009.
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:
 
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.                      
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.                      
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
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.  
Change in Control. For purposes of this Agreement, a “Change in Control” shall mean any of the following events:
 
(a) An acquisition (other than directly from the Company) 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);
 
(b) The individuals who, as of the date hereof, are members of the Board (the “Incumbent Board”), cease for any reason to constitute at least two-thirds of the Board; provided, however, that if the election, or nomination for election by the Company’s stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered a member of the Incumbent Board; provided further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or
 
(c) Approval by stockholders of the Company of:
 
(1) A merger, consolidation or reorganization involving the Company, unless
 
 
 (i)  the stockholders of the Company, immediately before such merger, consolidation or reorganization, own, directly or indirectly immediately following such merger, consolidation or reorganization, at least 70% of the combined voting power of the outstanding voting securities of the corporation resulting from such merger or consolidation or reorganization (the “Surviving Corporation”) in substantially the same proportion as their ownership of the Voting Securities immediately before such merger, consolidation or reorganization,
 (ii)  the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such merger, consolidation or reorganization constitute at least two-thirds of the members of the board of directors of the Surviving Corporation, and
 (iii)  no Person (other than the Company, any Subsidiary, any employee benefit plan (or any trust forming a part thereof) maintained by the Company, the Surviving Corporation or any Subsidiary, or any Person who, immediately prior to such merger, consolidation or reorganization, had Beneficial Ownership of 15% or more of the then outstanding Voting Securities) has Beneficial Ownership of 15% or more of the combined voting power of the Surviving Corporation’s then outstanding voting securities (a transaction described in clauses (i) through (iii) above shall herein be referred to as a “Non-Control Transaction”);
 
 
(2) A complete liquidation or dissolution of the Company; or
 
(3) An agreement for the sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Subsidiary).
 
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the “Subject Person”) acquired Beneficial Ownership of more than the permitted amount of the outstanding Voting Securities as a result of the acquisition of Voting Securities by the Company which, by reducing the number of Voting Securities outstanding, increases the proportional number of shares Beneficially Owned by the Subject Person; provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Voting Securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Voting Securities which increases the percentage of the then outstanding Voting Securities beneficially owned by the Subject Person, then a Change in Control shall occur.
 
(d) Notwithstanding anything contained in this Agreement to the contrary, if the Executive’s employment is terminated prior to a Change in Control and the Executive reasonably demonstrates that such termination (i) was at the request of a third party who had indicated an intention or taken steps reasonably calculated to effect a Change in Control and who effectuates a Change in Control (a “Third Party”) or (ii) otherwise occurred in connection with, or in anticipation of, a Change in Control which actually occurs, then for all purposes of this Agreement, the date of a Change in Control with respect to the Executive shall mean the date immediately prior to the date of such termination of the Executive’s employment.
 
2.4. 
Change in
Control
. For purposes of this
Agreement, a “Change
in Control
” shall mean any of the following events:

 

(a) An
acquisition (other than directly from the Company) 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);

 

(b) The
individuals who, as of the date hereof, are members of the Board (the “Incumbent Board”),
cease for any reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered a member of the Incumbent Board; provided further, however, that
no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened “Election
Contest
” (as described in Rule 14a-11 promulgated under the Securities
Exchange Act of 1934) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or

 

(c) Approval
by stockholders of the Company of:

 

(1) A merger,
consolidation or reorganization involving the Company, unless

 



 















 (i)  the
stockholders of the Company, immediately before such merger, consolidation
or reorganization, own, directly or indirectly immediately following such
merger, consolidation or reorganization, at least 70% of the combined
voting power of the outstanding voting securities of the corporation
resulting from such merger or consolidation or reorganization (the “Surviving
Corporation
”) in substantially the same proportion as their
ownership of the Voting Securities immediately before such merger,
consolidation or reorganization,
 (ii)  the
individuals who were members of the Incumbent Board immediately prior to
the execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board
of directors of the Surviving Corporation, and
 (iii)  no Person
(other than the Company, any Subsidiary, any employee benefit plan (or any
trust forming a part thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary, or any Person who, immediately prior to
such merger, consolidation or reorganization, had Beneficial Ownership of
15% or more of the then outstanding Voting Securities) has Beneficial
Ownership of 15% or more of the combined voting power of the Surviving
Corporation’s then outstanding voting securities (a transaction described
in clauses (i) through (iii) above shall herein be referred to as a “Non-Control
Transaction
”);


 

 

(2) A
complete liquidation or dissolution of the Company; or

 

(3) An
agreement for the sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a
Subsidiary).

 

Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any Person (the “Subject Person”)
acquired Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by reducing the number of Voting Securities
outstanding, increases the proportional number of shares Beneficially Owned by
the Subject Person; provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of Voting
Securities by the Company, and after such share acquisition by the Company, the
Subject Person becomes the Beneficial Owner of any additional Voting Securities
which increases the percentage of the then outstanding Voting Securities
beneficially owned by the Subject Person, then a Change in Control shall
occur.

 

(d) Notwithstanding
anything contained in this Agreement to the contrary, if the Executive’s
employment is terminated prior to a Change in Control and the Executive
reasonably demonstrates that such termination (i) was at the request of a third
party who had indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in Control (a “Third Party”) or (ii)
otherwise occurred in connection with, or in anticipation of, a Change in
Control which actually occurs, then for all purposes of this Agreement, the date
of a Change in Control with respect to the Executive shall mean the date
immediately prior to the date of such termination of the Executive’s
employment.

 

2.4. 
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:



 

These excerpts taken from the CENX 10-K filed Feb 29, 2008.
Change in
Control
. For purposes of this
Agreement, a “Change
in Control
” shall mean any of the following events:

 

(a)           An
acquisition (other than directly from the Company) 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);

 

(b)           The
individuals who, as of the date hereof, are members of the Board (the “Incumbent Board”),
cease for any reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered a member of the Incumbent Board; provided further, however, that
no




 



- 2
-

 



 




 

individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened “Election Contest” (as
described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934)
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or

 

(c)           Approval
by stockholders of the Company of:

 

(1)           A
merger, consolidation or reorganization involving the Company,
unless

 

(i)           the
stockholders of the Company, immediately before such merger, consolidation or
reorganization, own, directly or indirectly immediately following such merger,
consolidation or reorganization, at least 70% of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the “Surviving
Corporation
”) in substantially the same proportion as their ownership of
the Voting Securities immediately before such merger, consolidation or
reorganization,

 

(ii)           the
individuals who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, and

 

(iii)           no
Person (other than the Company, any Subsidiary, any employee benefit plan (or
any trust forming a part thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary, or any Person who, immediately prior to such
merger, consolidation or reorganization, had Beneficial Ownership of 15% or more
of the then outstanding Voting Securities) has Beneficial Ownership of 15% or
more of the combined voting power of the Surviving Corporation’s then
outstanding voting securities (a transaction described in clauses (i) through
(iii) above shall herein be referred to as a “Non-Control
Transaction
”);

 

(2)           A
complete liquidation or dissolution of the Company; or

 

(3)           An
agreement for the sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a
Subsidiary).

 

Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any Person (the “Subject Person”)
acquired Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by reducing the number of




 



- 3
-

 



 




 

Voting
Securities outstanding, increases the proportional number of shares Beneficially
Owned by the Subject Person; provided that if a Change in Control would occur
(but for the operation of this sentence) as a result of the acquisition of
Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Voting Securities which increases the percentage of the then outstanding Voting
Securities beneficially owned by the Subject Person, then a Change in Control
shall occur.

 

(d)           Notwithstanding
anything contained in this Agreement to the contrary, if the Executive’s
employment is terminated prior to a Change in Control and the Executive
reasonably demonstrates that such termination (i) was at the request of a third
party who had indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in Control (a “Third Party”) or (ii)
otherwise occurred in connection with, or in anticipation of, a Change in
Control which actually occurs, then for all purposes of this Agreement, the date
of a Change in Control with respect to the Executive shall mean the date
immediately prior to the date of such termination of the Executive’s
employment.

 

Change in
Control
. For purposes of this
Agreement, a “Change
in Control
” shall mean any of the following events:

 

(a)           An
acquisition (other than directly from the Company) 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);

 

(b)           The
individuals who, as of the date hereof, are members of the Board (the “Incumbent Board”),
cease for any reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered a member of the Incumbent Board; provided further, however, that
no







 


 



- 2
-







 




 

individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened “Election Contest” (as
described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934)
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or

 

(c)           Approval
by stockholders of the Company of:

 

(1)           A
merger, consolidation or reorganization involving the Company,
unless

 

(i)           the
stockholders of the Company, immediately before such merger, consolidation or
reorganization, own, directly or indirectly immediately following such merger,
consolidation or reorganization, at least 70% of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the “Surviving
Corporation
”) in substantially the same proportion as their ownership of
the Voting Securities immediately before such merger, consolidation or
reorganization,

 

(ii)           the
individuals who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, and

 

(iii)           no
Person (other than the Company, any Subsidiary, any employee benefit plan (or
any trust forming a part thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary, or any Person who, immediately prior to such
merger, consolidation or reorganization, had Beneficial Ownership of 15% or more
of the then outstanding Voting Securities) has Beneficial Ownership of 15% or
more of the combined voting power of the Surviving Corporation’s then
outstanding voting securities (a transaction described in clauses (i) through
(iii) above shall herein be referred to as a “Non-Control
Transaction
”);

 

(2)           A
complete liquidation or dissolution of the Company; or

 

(3)           An
agreement for the sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a
Subsidiary).

 

Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any Person (the “Subject Person”)
acquired Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by reducing the number of







 


 



- 3
-







 




 

Voting
Securities outstanding, increases the proportional number of shares Beneficially
Owned by the Subject Person; provided that if a Change in Control would occur
(but for the operation of this sentence) as a result of the acquisition of
Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Voting Securities which increases the percentage of the then outstanding Voting
Securities beneficially owned by the Subject Person, then a Change in Control
shall occur.

 

(d)           Notwithstanding
anything contained in this Agreement to the contrary, if the Executive’s
employment is terminated prior to a Change in Control and the Executive
reasonably demonstrates that such termination (i) was at the request of a third
party who had indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in Control (a “Third Party”) or (ii)
otherwise occurred in connection with, or in anticipation of, a Change in
Control which actually occurs, then for all purposes of this Agreement, the date
of a Change in Control with respect to the Executive shall mean the date
immediately prior to the date of such termination of the Executive’s
employment.

 

Change in
Control
. For purposes of this
Agreement, a “Change
in Control
” shall mean any of the following events:

 

(a)           An
acquisition (other than directly from the Company) 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);

 

(b)           The
individuals who, as of the date hereof, are members of the Board (the “Incumbent Board”),
cease for any reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered a member of the Incumbent Board; provided further, however, that
no




 



- 2
-

 



 




 

individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened “Election Contest” (as
described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934)
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or

 

(c)           Approval
by stockholders of the Company of:

 

(1)           A
merger, consolidation or reorganization involving the Company,
unless

 

(i)           the
stockholders of the Company, immediately before such merger, consolidation or
reorganization, own, directly or indirectly immediately following such merger,
consolidation or reorganization, at least 70% of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the “Surviving
Corporation
”) in substantially the same proportion as their ownership of
the Voting Securities immediately before such merger, consolidation or
reorganization,

 

(ii)           the
individuals who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, and

 

(iii)           no
Person (other than the Company, any Subsidiary, any employee benefit plan (or
any trust forming a part thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary, or any Person who, immediately prior to such
merger, consolidation or reorganization, had Beneficial Ownership of 15% or more
of the then outstanding Voting Securities) has Beneficial Ownership of 15% or
more of the combined voting power of the Surviving Corporation’s then
outstanding voting securities (a transaction described in clauses (i) through
(iii) above shall herein be referred to as a “Non-Control
Transaction
”);

 

(2)           A
complete liquidation or dissolution of the Company; or

 

(3)           An
agreement for the sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a
Subsidiary).

 

Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any Person (the “Subject Person”)
acquired Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by reducing the number of




 



- 3
-

 



 




 

Voting
Securities outstanding, increases the proportional number of shares Beneficially
Owned by the Subject Person; provided that if a Change in Control would occur
(but for the operation of this sentence) as a result of the acquisition of
Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Voting Securities which increases the percentage of the then outstanding Voting
Securities beneficially owned by the Subject Person, then a Change in Control
shall occur.

 

(d)           Notwithstanding
anything contained in this Agreement to the contrary, if the Executive’s
employment is terminated prior to a Change in Control and the Executive
reasonably demonstrates that such termination (i) was at the request of a third
party who had indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in Control (a “Third Party”) or (ii)
otherwise occurred in connection with, or in anticipation of, a Change in
Control which actually occurs, then for all purposes of this Agreement, the date
of a Change in Control with respect to the Executive shall mean the date
immediately prior to the date of such termination of the Executive’s
employment.

 

Change in
Control
. For purposes of this
Agreement, a “Change
in Control
” shall mean any of the following events:

 

(a)           An
acquisition (other than directly from the Company) 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);

 

(b)           The
individuals who, as of the date hereof, are members of the Board (the “Incumbent Board”),
cease for any reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered a member of the Incumbent Board; provided further, however, that
no







 


 



- 2
-

 



 




 

individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened “Election Contest” (as
described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934)
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or

 

(c)           Approval
by stockholders of the Company of:

 

(1)           A
merger, consolidation or reorganization involving the Company,
unless

 

(i)           the
stockholders of the Company, immediately before such merger, consolidation or
reorganization, own, directly or indirectly immediately following such merger,
consolidation or reorganization, at least 70% of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the “Surviving
Corporation
”) in substantially the same proportion as their ownership of
the Voting Securities immediately before such merger, consolidation or
reorganization,

 

(ii)           the
individuals who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, and

 

(iii)           no
Person (other than the Company, any Subsidiary, any employee benefit plan (or
any trust forming a part thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary, or any Person who, immediately prior to such
merger, consolidation or reorganization, had Beneficial Ownership of 15% or more
of the then outstanding Voting Securities) has Beneficial Ownership of 15% or
more of the combined voting power of the Surviving Corporation’s then
outstanding voting securities (a transaction described in clauses (i) through
(iii) above shall herein be referred to as a “Non-Control
Transaction
”);

 

(2)           A
complete liquidation or dissolution of the Company; or

 

(3)           An
agreement for the sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a
Subsidiary).

 

Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any Person (the “Subject Person”)
acquired Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by reducing the number of









 


 



- 3
-

 



 




 

Voting
Securities outstanding, increases the proportional number of shares Beneficially
Owned by the Subject Person; provided that if a Change in Control would occur
(but for the operation of this sentence) as a result of the acquisition of
Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Voting Securities which increases the percentage of the then outstanding Voting
Securities beneficially owned by the Subject Person, then a Change in Control
shall occur.

 

(d)           Notwithstanding
anything contained in this Agreement to the contrary, if the Executive’s
employment is terminated prior to a Change in Control and the Executive
reasonably demonstrates that such termination (i) was at the request of a third
party who had indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in Control (a “Third Party”) or (ii)
otherwise occurred in connection with, or in anticipation of, a Change in
Control which actually occurs, then for all purposes of this Agreement, the date
of a Change in Control with respect to the Executive shall mean the date
immediately prior to the date of such termination of the Executive’s
employment.

 

Change in
Control
. For purposes of this
Agreement, a “Change
in Control
” shall mean any of the following events:

 

(a)           An
acquisition (other than directly from the Company) 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);

 

(b)           The
individuals who, as of the date hereof, are members of the Board (the “Incumbent Board”),
cease for any reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered a member of the Incumbent Board; provided further, however, that
no




 



- 2
- -

 



 




 

individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened “Election Contest” (as
described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934)
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or

 

(c)           Approval
by stockholders of the Company of:

 

(1)           A
merger, consolidation or reorganization involving the Company,
unless

 

(i)           the
stockholders of the Company, immediately before such merger, consolidation or
reorganization, own, directly or indirectly immediately following such merger,
consolidation or reorganization, at least 70% of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the “Surviving
Corporation
”) in substantially the same proportion as their ownership of
the Voting Securities immediately before such merger, consolidation or
reorganization,

 

(ii)           the
individuals who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, and

 

(iii)           no
Person (other than the Company, any Subsidiary, any employee benefit plan (or
any trust forming a part thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary, or any Person who, immediately prior to such
merger, consolidation or reorganization, had Beneficial Ownership of 15% or more
of the then outstanding Voting Securities) has Beneficial Ownership of 15% or
more of the combined voting power of the Surviving Corporation’s then
outstanding voting securities (a transaction described in clauses (i) through
(iii) above shall herein be referred to as a “Non-Control
Transaction
”);

 

(2)           A
complete liquidation or dissolution of the Company; or

 

(3)           An
agreement for the sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a
Subsidiary).

 

Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any Person (the “Subject Person”)
acquired Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by reducing the number of




 



- 3
- -

 



 




 

Voting
Securities outstanding, increases the proportional number of shares Beneficially
Owned by the Subject Person; provided that if a Change in Control would occur
(but for the operation of this sentence) as a result of the acquisition of
Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Voting Securities which increases the percentage of the then outstanding Voting
Securities beneficially owned by the Subject Person, then a Change in Control
shall occur.

 

(d)           Notwithstanding
anything contained in this Agreement to the contrary, if the Executive’s
employment is terminated prior to a Change in Control and the Executive
reasonably demonstrates that such termination (i) was at the request of a third
party who had indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in Control (a “Third Party”) or (ii)
otherwise occurred in connection with, or in anticipation of, a Change in
Control which actually occurs, then for all purposes of this Agreement, the date
of a Change in Control with respect to the Executive shall mean the date
immediately prior to the date of such termination of the Executive’s
employment.

 

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