6,500,000 Shares CENTURY ALUMINUM COMPANY COMMON STOCK, $.01 PAR VALUE UNDERWRITING AGREEMENT
July 10, 2008
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As representatives of the Underwriters
listed in Schedule I hereto
listed in Schedule I hereto
Dear Sirs and Mesdames:
Century
Aluminum Company, a Delaware corporation (the
“Company”), proposes to issue
and sell to the several underwriters named in Schedule I hereto (the “Underwriters”) for
whom you are acting as representatives (the “Representatives”), an aggregate of
6,500,000 shares of the Common Stock, $.01 par value, of the Company (the “Firm Shares”
).
The Company also proposes to issue and sell to the several Underwriters not more
than an additional 975,000 shares of its Common Stock, $.01 par value (the “Additional
Shares”) if and to the extent that you, as Representatives, shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such shares of Common
Stock granted to the Underwriters in Section 2 hereof. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the “Shares”. The shares of
Common Stock, $.01 par value, of the Company (including the Shares) are hereinafter
referred to as the “Common Stock”.
The Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (File No. 333-143315), including a prospectus,
relating to the Company’s Common Stock (including the Shares) (the “Shelf Securities”),
to be offered from time to time by the Company. The registration statement as amended
to the date of this Agreement, including the information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430 B under
the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred
to as the “Registration Statement”, and the related prospectus covering the Shelf
Securities dated May 29, 2007 in the form first used to confirm sales of the Shares (or
in the form first made available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred
to as the
“Basic Prospectus. ” The Basic Prospectus, as supplemented by the prospectus
supplement specifically relating to the Shares in the form first used to confirm sales
of the Shares (or in the form first made available to the Underwriters by the Company
to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Prospectus”, and the
term “preliminary prospectus” means
any preliminary form of the Prospectus. For purposes of this Agreement, “free writing
prospectus” has the meaning set forth in Rule 405 under the Securities Act, “issuer free
writing prospectus” has the meaning set forth in Rule 433(h) under the Securities Act,
“Time of Sale Prospectus” means the preliminary prospectus together with the pricing
information set forth in Schedule III hereto and the free writing prospectuses, if any,
each identified in Schedule III hereto, and “electronic
road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act. As used
herein, the terms “Registration Statement”, “Basic
Prospectus”, “preliminary prospectus”, “Time of
Sale Prospectus” and “Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms
“supplement”, “amendment”, and “amend” as used
herein with respect to the Registration Statement, the Basic Prospectus, the Time of
Sale Prospectus, any preliminary prospectus or free writing prospectus shall include
all documents subsequently filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be
incorporated by reference therein.
In connection with the unwinding of forward sales contracts with Glencore AG, the
Company has entered into that certain Termination Agreement, dated July 7, 2008,
between the Company and Glencore Ltd.; Stock Purchase Agreement, dated July 7, 2008,
between the Company and Glencore Investment Pty Ltd; Standstill and Governance
Agreement, dated July 7, 2008, between the Company and Glencore AG; Registration Rights
Agreement, dated July 7, 2008, between the Company and Glencore Investment Pty Ltd (the
“Hedge Unwind Registration Rights Agreement”); and Certificate of Designation,
Preferences and Rights of Series A Convertible Preferred Stock, filed with the
Secretary of State of the State of Delaware on July 7, 2008 (collectively, the “Hedge
Unwind Agreements”).
1. Representations and Warranties of the Company. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or threatened by the
Commission. The Company is a well-known seasoned issuer (as defined in Rule
405 under the Securities Act) eligible to use the Registration Statement as an
automatic shelf registration statement. The Company has not received from the
Commission any notice pursuant to
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Rule 401(g)(2) under the Securities Act objecting to the use of the
Registration Statement as an automatic shelf registration statement.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act on or prior to the Closing Date (as defined below) or the Option
Closing Date (as defined below), as the case may be, and incorporated by
reference in the Time of Sale Prospectus or the Prospectus, complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain, any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement, as amended or
supplemented, if applicable, as of the date of its effectiveness complied, and
as of the Closing Date will comply, in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (iv) the Prospectus, as amended or supplemented, if applicable,
when filed complied in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, (v) the
Registration Statement as of the date hereof does not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (vi)
the Time of Sale Prospectus does not, and at the time of each sale of the
Shares in connection with the offering when the Prospectus is not yet available
to prospective purchasers and at the Closing Date (as defined in Section 4),
the Time of Sale Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, (vii) each
issuer free writing prospectus, including each electronic road show, if any,
when considered together with the Time of Sale Prospectus, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading and (viii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and
warranties set forth in this paragraph do not apply to statements in or
omissions from the Registration Statement, the Time of Sale Prospectus, the
Prospectus or any issuer free writing prospectus based upon information
relating to any Underwriter furnished to the Company in
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writing by such Underwriter through the Representatives expressly for use
therein.
(c)
The Company is not an “ineligible issuer” in connection with the
offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free
writing prospectus that the Company is required to file pursuant to Rule 433(d)
under the Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus
that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or that was prepared by or on behalf of or used or
referred to by the Company, complies or will comply in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule III hereto forming part of the
Time of Sale Prospectus, and electronic road shows, if any, each furnished to
you before first use, the Company has not prepared, used or referred to, and
will not, without your prior consent, prepare, use or refer to, any free
writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Time of Sale Prospectus and the
Prospectus and is duly qualified to transact business as a foreign corporation
and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(e) Each subsidiary of the Company has been duly organized, is validly
existing as a corporation or a limited liability company in good standing under
the laws of the jurisdiction of its organization, has the corporate or limited
liability company power and authority to own its property and to conduct its
business as described in the Time of Sale Prospectus and the Prospectus and is
duly qualified to transact business as a foreign corporation or a limited
liability company and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares of capital stock
or other equity interests of each subsidiary of the Company have been duly and
validly authorized
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and issued, are fully paid and non-assessable, or in the case of any subsidiary
that is not a corporation, all necessary actions under the limited liability
company act or the limited partnership act under which the subsidiary was
organized and the subsidiary’s constituent documents have been taken for the
purchase of such subsidiary’s equity interests and, other than in the case of
Gramercy Alumina LLC and St. Xxx Bauxite Limited (in each of which the Company
owns a 50% interest), are owned by the Company either directly or through
wholly-owned subsidiaries, free and clear of all liens, encumbrances, equities
or claims except for encumbrances on the Company’s ability to dispose of the
stock of Berkeley Aluminum, Inc. pursuant to the Amended and Restated Owners
Agreement dated as of January 26, 1996, as amended heretofore, governing the
use and ownership of the Mt. Xxxxx facility.
(f) Each of this Agreement and the Hedge Unwind Agreements has been
duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in each of the Time of Sale
Prospectus and the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of the
Shares (including shares of Common Stock underlying the outstanding Global
Depositary Receipts of the Company) have been duly authorized and are validly
issued, fully paid and non-assessable.
(i) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(j) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement and the Hedge Unwind
Agreements will not contravene any provision of applicable law or the
certificate of incorporation or by-laws or other constituent documents of the
Company or any of its subsidiaries or any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization, filing or order of, or
qualification with, any governmental body or agency is required to be obtained
by the Company or its subsidiaries for the performance by the Company of its
obligations under this Agreement and the Hedge Unwind Agreements
5
except such as have been obtained or such as may be required for the listing of
the shares on the NASDAQ Global Market or by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the Time
of Sale Prospectus and the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(l) There are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and
are not so described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are
not described or filed as required.
(m) Each preliminary prospectus filed as part of the Registration
Statement or as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in the
Time of Sale Prospectus and the Prospectus will not be, required to register as
an “investment company” as such term is defined in the Investment Company Act of
1940, as amended.
(o) Other than as disclosed in the Time of Sale Prospectus and the
Prospectus, the Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants (
“Environmental Laws” ),
(ii) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to
6
comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, be reasonably likely to have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(p) Other than as disclosed in the Time of Sale Prospectus and the
Prospectus, the Company and its subsidiaries do not have any costs or
liabilities associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, be
reasonably likely to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(q) Except for the Hedge Unwind Registration Rights
Agreement, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company
to file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such securities
with the Shares registered pursuant to the Registration Statement.
(r) The Company has duly notified the NASDAQ Global Select Market to
list the Shares for quotation on the NASDAQ Global Select Market.
(s) Neither the Company nor any of its subsidiaries (i) is in violation
of its respective charter or by-laws or similar organizational documents or
(ii) is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any bond, debenture, note or
other evidence of indebtedness, or in any lease, contract, indenture, deed of
trust, loan agreement, joint venture or other agreement or instrument to which
the Company or any of its subsidiaries is a party, or by which it or any of its
subsidiaries or their respective properties may be bound, except where such
defaults would not, singly or in the aggregate, be reasonably likely to have a
material adverse effect on the Company and its subsidiaries, taken as a whole;
and neither the Company nor any of its subsidiaries is in violation of any law
(other than Environmental Laws), order, rule, regulation, writ, injunction,
judgment or decree of any court, government or governmental agency or body,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or over their respective properties except where such violations
would not, singly or in the aggregate, be reasonably likely to
7
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(t) Subsequent to the date as of which information is given in the Time
of Sale Prospectus and the Prospectus (exclusive of any amendment or supplement
thereto subsequent to the date of this Agreement), (i) the Company and its
subsidiaries have not incurred any liability or obligation, direct or
contingent, nor entered into any transaction not in the ordinary course of
business, which, in either case, individually or in the aggregate, is material
with respect to the Company and its subsidiaries, taken as a whole; (ii) the
Company has not purchased any of its outstanding capital stock (other than
through withholding shares upon the vesting of performance shares), nor
declared, paid or otherwise made any dividend or distribution of any kind on
its capital stock other than ordinary and customary dividends; and (iii) there
has not been any material change in the capital stock, short-term debt or
long-term debt of the Company and its subsidiaries, except in each case as
described in the Time of Sale Prospectus and Prospectus.
(u) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names currently employed by them in
connection with the business now operated by them, and neither the Company nor
any of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would be reasonably likely to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(v) No labor dispute with the employees of the Company or any of its
subsidiaries exists, or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing, threatened or imminent labor
disturbances by the employees of any of its principal suppliers, manufacturers
or contractors, that, in each such case, would, singly or in the aggregate, be
reasonably likely to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(w) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as the Company believes are prudent and customary in the businesses in
which they are engaged; neither the Company nor any of its subsidiaries has
been refused any material insurance coverage sought
8
or applied for; and neither the Company nor any of its subsidiaries has any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole, except as described in the Time of Sale Prospectus and the
Prospectus.
(x) Except as described in the Time of Sale Prospectus and the
Prospectus, the Company and its subsidiaries possess all certificates,
authorizations and permits (other than permits, licenses or other approvals
required under applicable Environmental Laws) issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and have made all declarations and filings with, all
federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and
other tribunals, domestic or foreign, necessary to own or lease, as the case
may be, and to operate their properties and to carry on their business as
conducted as of the date hereof, except such as would not, singly or in the
aggregate, be reasonably likely to result in a material adverse effect on the
Company and its subsidiaries, taken as a whole; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would be reasonably likely to have a material adverse effect
on the Company and its subsidiaries, taken as a whole, except as described in
the Time of Sale Prospectus and the Prospectus.
(y) Except as disclosed in the Time of Sale Prospectus and the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with this offering.
(z) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
9
(aa) The financial statements of the Company included or incorporated by
reference in the Time of Sale Prospectus and the Prospectus present fairly in
all material respects the consolidated financial position of the Company and
its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial statements
have been prepared in conformity with generally accepted accounting principles
in the United States applied on a consistent basis.
(bb) As of the date hereof, there are no outstanding subscriptions,
rights, warrants, options, calls, convertible securities or commitments of
sale granted or issued by the Company or any of its subsidiaries relating to
or entitling any person to purchase or otherwise to acquire any shares of the
capital stock of the Company or any of its subsidiaries, except as otherwise
disclosed in the Registration Statement, the Time of Sale Prospectus and the
Prospectus.
(cc) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries, are independent
public accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder.
(dd) The Company is not engaged in discussions regarding any possible
acquisitions or dispositions that are required to be described in the
Registration Statement, the Time of Sale Prospectus or the Prospectus and are
not so described.
(ee) Schedule II hereto is a true and complete list of all of the
Company’s significant subsidiaries (as defined in Rule 1-02(w) of Regulation
S-X) as of the date of this Agreement (the “Significant
Subsidiaries”).
(ff)
The agreements and other documents filed as exhibits to the
Company’s
Annual Report on Form 10-K for the year ended December 31, 2007 or filed as an
exhibit to any subsequent filing under the Exchange Act constitute all of the
outstanding material contracts of the Company and its subsidiaries taken as a
whole required to be filed as exhibits under Item 601 of Regulation S-K.
(gg)
Neither the Company nor any of its subsidiaries nor, to the
Company’s
knowledge, any director, officer, employee, agent or affiliate of the Company
or of any of its subsidiaries, has taken any action in furtherance of an offer,
payment, promise to pay, or authorization or approval of the payment or giving
of money, property, gifts or anything else of value, directly or indirectly, to
any “foreign official” (as such term
10
is defined in the Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder (the “FCPA”)) to influence official action or
secure an improper advantage; and the Company and its subsidiaries and, to
the Company’s knowledge, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to promote and achieve compliance with such laws.
(hh) The operations of the Company and its subsidiaries are and have been
conducted at all times in material compliance with the applicable anti-money
laundering statutes of jurisdictions where the Company and its subsidiaries
conduct business, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Anti-Money
Laundering Laws”), and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to
the best knowledge of the Company, threatened.
(ii) (i) The Company represents that neither the Company nor any of its
subsidiaries or, to the knowledge of the Company, any director, officer,
employee, agent, or affiliate of the Company, is an individual or entity (
“Person”) that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the
U.S. Department of Treasury’s Office of Foreign Assets Control
(“OFAC”
), the European Union (“EU”), or other relevant sanctions authority
(collectively, “Sanctions”), nor
(B) located, organized or resident in a country or territory
that is the subject of Sanctions (including, without limitation,
Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Company will not, directly or indirectly, use the proceeds of
the offering, or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other Person for the purpose of
financing any activities or business of or with any Person or in any country or
territory that, at the time of such financing, is the subject of Sanctions.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the
several Underwriters, and each Underwriter, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from the
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Company at
$59.1375 a share (the “Purchase Price”) the respective numbers of Firm
Shares set forth in Schedule I hereto opposite its name.
On the basis of the representations and warranties contained in this Agreement,
and subject to its terms and conditions, the Company agrees to sell to the Underwriters
the Additional Shares, and the Underwriters shall have the right to purchase, severally
and not jointly, up to 975,000 Additional Shares at the Purchase Price. You may
exercise this right on behalf of the Underwriters in whole or from time to time in part
by giving written notice not later than 30 days after the date of this Agreement. Any
exercise notice shall specify the number of Additional Shares to be purchased by the
Underwriters and the date on which such shares are to be purchased. Each purchase date
must be at least one business day after the written notice is given and may not be
earlier than the closing date for the Firm Shares nor later than ten business days
after the date of such notice. Additional Shares may be purchased as provided in
Section 4 hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. On each day, if any, that Additional Shares are
to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not
jointly, to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion to the
total number of Additional Shares to be purchased on such Option Closing Date as the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that it will not, without the prior written consent of
Credit Suisse Securities (USA) LLC and Xxxxxx Xxxxxxx & Co. Incorporated on behalf of
the Underwriters, during the period ending 90 days after the date of the Prospectus,
(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares
of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the
Common Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or otherwise.
The restrictions contained in the preceding paragraph shall not apply to (A) the
Shares to be sold hereunder, (B) the grant or award of stock options, performance
shares or other stock-based compensation under the Company’s Amended and Restated
1996 Stock Incentive Plan as in effect on the date hereof, or (C) the issuance by the
Company of shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security or upon the vesting of performance shares or restricted
stock outstanding on the date hereof and disclosed in the Time of Sale Prospectus and
the Prospectus.
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3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of the
Shares as soon after the Registration Statement and this Agreement have become
effective as in your judgment is advisable. The Company is further advised by you that
the Shares are to be offered to the public initially at $62.25 a
share (the “Public Offering Price”) and to certain dealers selected by you at a price that represents a
concession not in excess of $1.8675 a share under the Public Offering Price.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several Underwriters
at 10:00 a.m., New York City time, on July 16, 2008, or at such other time on the
same or such other date, not later than July 23, 2008, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as the
“Closing Date”.
Payment for any Additional Shares shall be made to the Company in Federal or other
funds immediately available in New York City against delivery of such Additional Shares
for the respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on the date specified in the corresponding notice described in Section 2 or at
such other time on the same or on such other date, in any event not later than August
22, 2008, as shall be designated in writing by you.
The Firm Shares and the Additional Shares shall be registered in such names and in
such denominations as you shall request in writing not later than one full business day
prior to the Closing Date or the applicable Option Closing Date, as the case may be.
The Firm Shares and the Additional Shares shall be delivered to you on the Closing Date
or an Option Closing Date, as the case may be, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection with the transfer
of the Shares to the Underwriters duly paid, against payment of the Purchase Price
therefor.
5. Conditions
to the Underwriters’ Obligations. The several
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior
to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the
Company’s securities by any “nationally
13
recognized
statistical rating organization,” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the Time
of Sale Prospectus as of the date of this Agreement that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(a)(i) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion
of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, outside counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Time of
Sale Prospectus and the Prospectus;
(ii) each of the Significant Subsidiaries, is validly existing as
a corporation, limited liability company, limited partnership or
general partnership in good standing under the laws of the jurisdiction
of its organization, has the corporate, limited liability company,
limited partnership or general partnership power and authority to own
its property and to conduct its business as described in the Time of
Sale Prospectus and the Prospectus;
(iii) the authorized capital stock of the Company conforms
as to legal matters in all material respects to the
14
description thereof contained in each of the Time of Sale
Prospectus and the Prospectus;
(iv) all of the issued shares of capital stock of each
Significant Subsidiary of the Company that is a corporation are
owned of record by the Company either directly or through
wholly-owned subsidiaries, free and clear of any perfected security
interests;
(v) the Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or, to the
knowledge of such counsel, similar rights;
(vi) this Agreement has been duly authorized, executed
and delivered by the Company;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law of any
jurisdiction in the U.S. or the certificate of incorporation or
by-laws or other constituent documents of the Company or any of its
Significant Subsidiaries or, to the best of such counsel’s knowledge
after due inquiry, any agreement or other instrument binding upon the
Company or any of its subsidiaries that has been filed or incorporated
by reference as an exhibit to the Company’s Annual Report on Form 10-K
for the year ended December 31, 2007, or, to such counsel’s knowledge,
any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as have
been obtained or such as may be required for the listing of the shares
on the NASDAQ Global Select Market or by the securities or Blue Sky
laws of the various states in connection with the offer and sale of
the Shares (as to which such counsel need express no opinion);
(viii) the statements relating to legal matters, proceedings or
documents (A) included in the Time of Sale Prospectus and the
Prospectus under the captions “Recent Developments—Century and
Glencore terminate swap contracts; Century issues 160,000 shares of
preferred stock to Glencore,”
15
“Certain Relationships and Related Transactions—Recent Transactions
with Glencore” and “—Termination of Financial Sales Contracts with
Glencore,” “Description of Stock,” “Underwriters,” and “Certain United
States Federal Tax Considerations for Non-U.S. Holders,” (B) included
in the Registration Statement in Item 15, and (C) included in the
Company’s Annual Report on Form 10-K for the year ended December 31,
2007 under “Item 3 — Legal Proceedings” and incorporated by reference
in the Time of Sale Prospectus and the Prospectus, in each case
insofar as such statements constitute summaries of legal matters or
proceedings referred to therein, fairly summarize in all material
respects such legal matters or proceedings and insofar as such
statements constitute summaries of documents described therein,
accurately describe the terms and provisions of such documents;
(ix) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(x) the Company is not, and after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an
“investment company” as such term is defined in the Investment Company
Act of 1940, as amended; and
(xi) (A) in the opinion of such counsel, the Registration
Statement and the Prospectus (except for the financial statements,
including the notes thereto and related schedules, and the other
financial, accounting and statistical data included therein or
omitted therefrom as to which such counsel need not express any
comment) appear on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder, and
(B) such counsel has participated in conferences with officers and
other representatives of the Company at which conferences such
counsel discussed the contents of the Registration Statement, the
16
Time of Sale Prospectus, and the Prospectus, and no facts have come to
the attention of such counsel that cause such counsel to believe that
(1) the Registration Statement (except for the financial statements,
including the notes thereto and related schedules, and the other
financial, accounting and statistical data included therein or omitted
therefrom as to which such counsel need not express any comment), when
it became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (2) the Time
of Sale Prospectus (except for the financial statements, including the
notes thereto and related schedules, and other financial, accounting
and statistical data included therein or omitted therefrom as to which
such counsel need not express any comment) as of the date of this
Agreement contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading or (3) the Prospectus (except for the
financial statements, including the notes thereto and related
schedules, and other financial, accounting and statistical data
included therein or omitted therefrom as to which such counsel need not
express any comment) as amended or supplemented, if applicable, as of
its date and as of the Closing Date contained or contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date an opinion
of Xxxxxx X. Xxxxxxx, Executive Vice President, General Counsel and Secretary
of the Company, dated the Closing Date to the effect that:
(i) the Company is duly qualified to transact business as a
foreign corporation and is in good standing in each jurisdiction in the
United States in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not be
reasonably likely to have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) each of the Significant Subsidiaries is duly qualified to
transact business as a foreign corporation, limited liability
company, limited partnership or general partnership and
17
is in good standing in each jurisdiction in the United States in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not be
reasonably likely to have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(iii) the shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable;
(iv) all of the issued shares of capital stock or other equity
interests of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, or in the
case of any subsidiary that is not a corporation, all necessary
actions under the limited liability company act, the limited
partnership act or the general partnership act under which the
subsidiary was organized and the subsidiary’s constituent documents
have been taken for the purchase of such subsidiary’s equity interests
and, other than in the case of Gramercy Alumina LLC and St. Xxx
Bauxite Limited (in each of which the Company owns a 50% interest),
are owned by the Company either directly or through wholly-owned
subsidiaries, free and clear of all liens, encumbrances, equities or
claims except for limitations on the Company’s ability to dispose of
the stock of Berkeley Aluminum, Inc. pursuant to the Amended and
Restated Owners’ Agreement dated as of January 26, 1996, as amended
heretofore, governing the use and ownership of the Mt. Xxxxx facility;
(v) except for the Hedge Unwind Registration Rights Agreement,
there are no contracts, agreements or understandings known to such
counsel between the Company and any person granting such person the
right to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the
Securities Act;
(vi) there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities or commitments of sale granted
or issued by the Company or any of its subsidiaries relating to or
entitling any person to purchase or otherwise to
18
acquire any shares of the capital stock of the Company or any of its
subsidiaries, except as otherwise disclosed in the Registration
Statement;
(vii) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(viii) other than as disclosed in the Time of Sale Prospectus or
the Prospectus, the Company and its subsidiaries (i) are in compliance
with any and all applicable federal environmental laws of the United
States of America (“Environmental Laws”), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(ix) the statements relating to legal matters, proceedings or
documents included in the Company’s Annual Report on Form 10-K for
the year ended December 31, 2007 under “Item 1 — Business” and
incorporated by reference in the Time of Sale Prospectus and the
Prospectus, insofar as such statements constitute summaries of legal
matters or proceedings referred to therein, fairly summarize in all
material respects such legal matters or proceedings, and insofar as
such statements constitute summaries of documents described therein,
accurately describe the terms and provisions of such documents; and
(x) (A) in the opinion of such counsel (1) each document filed
pursuant to the Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except for the financial
statements and financial schedules and other
19
financial, accounting and statistical data included therein or omitted
therefrom, as to which such counsel need not express any comment)
appeared on its face to be appropriately responsive as of its filing
date in all material respects to the requirements of the Exchange Act
and the applicable rules and regulations of the Commission thereunder,
and (2) the Registration Statement and the Prospectus (except for the
financial statements, including the notes thereto and related
schedules, and the other financial, accounting and statistical data
included therein or omitted therefrom as to which such counsel need
not express any comment) appear on their face to be appropriately
responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder, and (B) such counsel has participated in
conferences with officers and other representatives of the Company at
which conferences such counsel discussed the contents of the
Registration Statement, the Time of Sale Prospectus, and the
Prospectus, and no facts have come to the attention of such counsel
that cause such counsel to believe that (1) the Registration Statement
(except for the financial statements, including the notes thereto and
related schedules, and the other financial, accounting and statistical
data included therein or omitted therefrom as to which such counsel
need not express any comment), when it became effective, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (2) the Time of Sale Prospectus (except for
the financial statements, including the notes thereto and related
schedules, and other financial, accounting and statistical data
included therein or omitted therefrom as to which such counsel need
not express any comment) as of the date of this Agreement contained or
contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or (3) the Prospectus (except for the financial
statements, including the notes thereto and related schedules, and
other financial, accounting and statistical data included therein or
omitted therefrom as to which such counsel need not express any
comment) as amended or supplemented, if applicable, as of its date and
as of the Closing Date contained or contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
20
(e) The Underwriters shall have received on the Closing Date an opinion
of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in Sections 5(c)(v), 5(c)(vi), 5(c)(viii) (but
only as to the statements in each of the Time of Sale Prospectus and the
Prospectus under “Underwriters”) and clauses 5(c)(xi)(A), 5(c)(xi)(B)(2) and
5(c)(xi)(B)(3) above.
With respect to clauses (A) and (B) of the last paragraph of Section
5(c)(xi) above, Xxxxx Xxxx & Xxxxxxxx may state that their beliefs are based
upon their participation in the preparation of the Registration Statement, the
Time of Sale Prospectus, the Prospectus and any amendments or supplements
thereto (other than the documents incorporated by reference) and upon review
and discussion of the contents thereof (including documents incorporated by
reference), but are without independent check or verification, except as
specified.
The opinions of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP and Xxxxxx X. Xxxxxxx
described in Sections 5(c) and 5(d) above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to the Underwriters, from
Deloitte & Touche LLP, independent public accountants for the Company,
containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference in the Registration Statement, the Time of Sale Prospectus and the
Prospectus; provided that the letter delivered on the Closing Date shall use
a “cut-off date” not earlier than the date hereof.
(g)
The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, between you and certain shareholders, officers and directors of the
Company relating to sales and certain other dispositions of shares of Common
Stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing Date of
such documents as you may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Shares to be sold on such
Option Closing Date and other matters related to the issuance of such Additional
Shares.
21
6. Covenants of the Company. In further consideration of the agreements of the
Underwriters herein contained, the Company covenants with each Underwriter as
follows:
(a) To furnish to you, without charge, three signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference) and, to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
paragraphs (e) or (f) below, copies of the Time of Sale Prospectus, the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement, in each
case in such quantities as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time
of Sale Prospectus or, the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to
be prepared by or on behalf of, used by, or referred to by the Company and not
to use or refer to any proposed free writing prospectus to which you reasonably
object.
(d) Not to take any action that would result in an Underwriter or the
Company being required to file with the Commission pursuant to Rule 433(d)
under the Securities Act a free writing prospectus prepared by or on behalf of
the Underwriter that the Underwriter otherwise would not have been required to
file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy
the Shares at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Time of Sale Prospectus in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if any event shall occur or condition exist as a
result of which the Time of Sale Prospectus conflicts with the information
contained in the Registration Statement then on file, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file
with
22
the Commission and furnish, at its own expense, to the Underwriters and to any
dealer upon request, either amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as so amended
or supplemented will not, in the light of the circumstances under which they
were made when delivered to a prospective purchaser, be misleading, or so that
the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of
the Shares as in the opinion of counsel for the Underwriters the Prospectus (or
in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
required by law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the
Securities Act) is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare, file with
the Commission and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances under which they were made, when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the
Securities Act) is delivered to a purchaser, be misleading, or so that the
Prospectus, as amended or supplemented, will comply with applicable law.
(g) To use its reasonable efforts to qualify the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(h) To make generally available to the Company’s security holders and to
you as soon as practicable an earning statement covering the twelve-month
period ending June 30, 2009 that satisfies the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission thereunder.
23
(i) To ensure that on the Closing Date, subject to notice of
issuance, the Shares shall have been duly admitted for quotation on the
NASDAQ Global Select Market.
(j) To use the net proceeds received in connection with the offering
of Shares in the manner described in the “Use of Proceeds” section of the
Time of Sale Prospectus.
7. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to pay or
cause to be paid all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel
and the Company’s accountants in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary prospectus, the
Time of Sale Prospectus, the Prospectus, any issuer free writing prospectus and
amendments and supplements to any of the foregoing, including the filing fees payable
to the Commission relating to the Shares (within the time required by Rule 456(b)(1),
if applicable), all printing costs associated therewith, and the mailing and delivering
of copies thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery of the
Shares to the Underwriters, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer and sale under
state securities laws as provided in Section 6(g) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky or Legal Investment memorandum,
(iv) all filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of the offering
of the Shares by the National Association of Securities Dealers, Inc., (v) all costs
and expenses incident to listing the Shares on the NASDAQ Global Select Market, (vi)
the cost of printing certificates representing the Shares, (vii) the costs and charges
of any transfer agent, registrar or depositary, (viii) the costs and expenses of the
Company relating to investor presentations on any “road show” undertaken in connection
with the marketing of the offering of the Shares, including, without limitation,
expenses associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show presentations with
the prior approval of the Company, travel and lodging expenses of the representatives
and officers of the Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show, (ix) the document production charges and
expenses associated with printing this Agreement and (x) all other costs and expenses
incident to the performance of
24
the obligations of the Company hereunder for which provision is not otherwise made in
this Section. It is understood, however, that except as provided in this Section,
Section 9 entitled “Indemnity and Contribution”, and the last paragraph of Section 11
below, the Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any of the
Shares by them and any advertising expenses connected with any offers they may make.
8. Covenants of the Underwriters. Each Underwriter severally covenants with
the Company not to take any action that would result in the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a
free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the
action of the Underwriter.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and hold
harmless each Underwriter, each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time
of Sale Prospectus, any issuer free writing prospectus, any Company information that
the Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act, the Prospectus or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use in the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus, the Prospectus or any amendment or supplement thereto.
25
(c) In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought pursuant to
Section 9(a) or 9(b), such person (the “indemnified party”) shall promptly notify the
person against whom such indemnity may be sought (the “indemnifying party”) in writing
and the indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal expenses of
any indemnified party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for (i) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Underwriters and all persons, if any,
who control any Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within
the meaning of Rule 405 under the Securities Act and (ii) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons and affiliates of any
Underwriters, such firm shall be designated in writing by Credit Suisse Securities
(USA) LLC and Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any such separate firm
for the Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such
26
settlement. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such settlement (x)
includes an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding and (y) does not include a
statement as to or an admission of fault or culpability or a failure to act, by or on
behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 9(a) or 9(b) is
unavailable to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause 9(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred
to in clause 9(d)(i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares.
The relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Underwriters’
respective obligations to contribute pursuant to this Section 9 are several in
proportion to the respective number of Shares they have purchased hereunder, and not
joint.
(e) The Company and the Underwriters agree that it would not be just or equitable
if contribution pursuant to this Section 9 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations referred to in
Section 9(d). The amount paid or payable by an
27
indemnified party as a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 9 and the
representations, warranties and other statements of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter, any person controlling any Underwriter or any affiliate of any
Underwriter, or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the Shares.
10. Termination. The Underwriters may terminate this Agreement by notice given by
you to the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially limited
on, or by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the NASDAQ Global Select Market, the Chicago Board of Options Exchange, the
Chicago Mercantile Exchange, the Chicago Board of Trade or the London Metal Exchange,
(ii) trading of any securities of the Company shall have been suspended on any exchange
or in any over-the-counter market, (iii) a material disruption in securities
settlement, payment or clearance services in the United States shall have occurred,
(iv) any moratorium on commercial banking activities shall have been declared by
Federal or New York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and which, singly or together with any
other event specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and
in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
28
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or
more of the Underwriters shall fail or refuse to purchase Shares that it has or they
have agreed to purchase hereunder on such date, and the aggregate number of Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of the Shares to be
purchased on such date, the other Underwriters shall be obligated severally in the
proportions that the number of Firm Shares set forth opposite their respective names in
Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify,
to purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the number
of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 11 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and
the aggregate number of Firm Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Firm Shares to be purchased, and arrangements
satisfactory to you and the Company for the purchase of such Firm Shares are not made
within 36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case either you
or the Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the Registration
Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents
or arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the aggregate
number of Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased on such Option
Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase the Additional Shares to be sold on such Option
Closing Date or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence of
such default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the Company
will reimburse the Underwriters or such Underwriters as have so
29
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or the
offering contemplated hereunder.
12. Entire Agreement. This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this
Agreement) that relate to the offering of the Shares, represents the entire agreement
between the Company and the Underwriters with respect to the preparation of any
preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of
the offering, and the purchase and sale of the Shares.
13. Absence of Fiduciary Relationship. The Company acknowledges that in
connection with the offering of the Shares: (i) the Underwriters
have acted at arms’
length, are not agents of, and owe no fiduciary duties to, the Company or any other
person, (ii) the Underwriters owe the Company only those duties and obligations set
forth in this Agreement and prior written agreements (to the extent not superseded by
this Agreement), if any, and (iii) the Underwriters may have interests that differ from
those of the Company. The Company waives to the fullest extent permitted by applicable
law any claims it may have against the Underwriters arising from an alleged breach of
fiduciary duty in connection with the offering of the Shares. The Underwriters in
their capacity as such are not advising the Company or any other person as to any
legal, tax, investment, accounting or regulatory matters in any jurisdiction. The
Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and shall not
be on behalf of the Company.
14. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
15. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
16. Headings. The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this Agreement.
30
| Very truly yours, CENTURY ALUMINUM COMPANY |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxxxxx | |||
| Title: | Vice President, Assistant General Counsel and Assistant Secretary | |||
Accepted as of the date hereof
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto
| By: Credit Suisse Securities (USA) LLC |
|||||
| By: | /s/ XXXXXXXX X. XXXXXXX | ||||
| Name: | XXXXXXXX X. XXXXXXX | ||||
| Title: | MANAGING DIRECTOR | ||||
| By: Xxxxxx Xxxxxxx & Co. Incorporated |
|||||
| By: | |||||
| Name: | |||||
| Title: | |||||
Accepted as of the date hereof
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto
| By: Credit Suisse Securities (USA) LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: Xxxxxx Xxxxxxx & Co. Incorporated |
||||
| By: | /s/ XXXXX XXXXXXXXX | |||
| Name: | XXXXX XXXXXXXXX | |||
| Title: | VICE PRESIDENT | |||
SCHEDULE I
| Number of Firm Shares | ||||
| Underwriter | To Be Purchased | |||
Credit Suisse Securities (USA) LLC |
3,250,000 | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
3,250,000 | |||
Total: |
6,500,000 | |||
I-1
SCHEDULE II
Significant Subsidiaries
| JURISDICTION OF | ||
| INCORPORATION OR | ||
| COMPANY NAME | ORGANIZATION | |
Berkeley Aluminum, Inc.
|
Delaware | |
Century Aluminum of West Virginia, Inc.
|
Delaware | |
Century Kentucky, Inc.
|
Delaware | |
Century Bermuda I Limited
|
Bermuda | |
NSA General Partnership
|
Kentucky | |
Century Aluminum of Kentucky General
|
Kentucky | |
Partnership |
||
Century Bermuda II Limited
|
Bermuda | |
Nordural U.S. LLC
|
Delaware | |
Nordural ehf
|
Iceland | |
Nordural Grundartangi ehf.
|
Iceland | |
II-1
SCHEDULE III
1. Time of Sale Prospectus
None
2. Pricing Information
Price to public: $62.25
III-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
July , 2008
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
New York, New York 10010
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
As representatives of the several Underwriters referred to below
Dear Sirs and Mesdames:
The undersigned understands that Credit Suisse Securities (USA) LLC
(“Credit Suisse”) and Xxxxxx Xxxxxxx & Co. Incorporated
(“Xxxxxx Xxxxxxx”) propose to enter into an Underwriting Agreement
(the “Underwriting Agreement”) with Century
Aluminum Company, a Delaware corporation (the “Company”) providing for the public
offering (the “Public Offering”) by the several underwriters, including Credit Suisse
and Xxxxxx Xxxxxxx and the other underwriters for which they act as representatives
(the “Underwriters”), of shares (the “Shares”) of the Common Stock, $.01 par value of
the Company (the “Common Stock”).
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned hereby
agrees that, without the prior written consent of Credit Suisse and Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period commencing on the date
hereof and ending 90 days after the date of the final prospectus relating to the
Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence shall not
apply to (a) the sale of any Shares to the Underwriters pursuant to the Underwriting
Agreement, (b) transactions relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the Public Offering, (c)
the cashless exercise of an option outstanding as of the date hereof that will expire
during the restricted period referred to in the foregoing sentence; provided that (i)
such transaction does not involve the sale or transfer of any shares of Common Stock
other than to the Company and (ii) the shares received upon such exercise shall be
subject to the terms of the Lock-Up Agreement, (d) sales or other dispositions of
shares of Common Stock to the Company to discharge tax withholding obligations
resulting from the vesting of performance shares during the term of the Lock-Up
Agreement; provided that (i) the undersigned is listed on Schedule I hereto and (ii)
the aggregate number of shares withheld by the Company for all persons listed on
Schedule I hereto shall not exceed 100,000 shares of Common Stock, (e) transfers of
Common Stock or securities convertible into Common Stock pursuant to the bona fide
acquisition of the Company by a third party by way of merger, consolidation, stock
exchange or tender offer, (f) transfers of shares of Common Stock as bona fide gifts,
and (g) transfers of shares of Common Stock to a trust where the beneficiaries of the
trust are drawn solely from a group consisting of the undersigned and immediate family
members of the undersigned; provided that in the case of any transfer pursuant to
clause (f) or (g), (i) each transferee or trustee agrees to enter into a lock-up letter
substantially in the form of this Lock-Up Agreement and (ii) the undersigned shall not
be required to, and shall not voluntarily, file a report on Form 4 under Section 16(a)
of the Securities Exchange Act of 1934 reporting a reduction in beneficial ownership of
shares of Common Stock during the restricted period referred to in the foregoing
sentence. “Immediate family member” of a person means the spouse, lineal descendants,
father, mother, brother, sister, father-in-law, mother-in-law, brother-in-law and
sister-in-law of such person. In addition, the undersigned agrees that, without the
prior written consent of Credit Suisse and Xxxxxx Xxxxxxx on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and ending
90 days after the date of the Prospectus, make any demand for or exercise any right
with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock. The undersigned also
agrees and consents to the entry of stop transfer instructions with the Company’s
transfer agent and registrar against the transfer of the undersigned’s shares of Common
Stock except in compliance with the foregoing restrictions.
Notwithstanding any provisions set forth in this Lock-Up Agreement to the
contrary, this Lock-Up Agreement shall terminate on July 31, 2008 if the
A-2
Company and the Underwriters shall not have executed the Underwriting
Agreement by such date.
The undersigned understands that the Company and the Underwriters are relying upon
this Lock-Up Agreement in proceeding toward consummation of the Public Offering. The
undersigned further understands that this Lock-Up Agreement is irrevocable and shall be
binding upon the undersigned’s heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of factors,
including market conditions. Any Public Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between the
Company and the Underwriters. If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
| Very truly yours, |
||||
| (Name) | ||||
| (Address) | ||||
A-3
Schedule I
Xxxxx X. Xxxxxx
Xxxxxxx X. Bless
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx
Xxxxxxxx X. Xxxx
Xxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxx X. X’Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxxxxxx
Xxxxx X. Xxxx
Xxxxxxx X. Bless
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx
Xxxxxxxx X. Xxxx
Xxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxx X. X’Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxxxxxx
Xxxxx X. Xxxx
