Exhibit 2
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
By and Between
CENTURY ALUMINUM COMPANY
and
GLENCORE AG
Dated as of March 30, 2001
TABLE OF CONTENTS
page
Article I CERTAIN DEFINITIONS............................................1
Section 1.1 Certain Definitions.......................................1
Article II PURCHASE OF SHARES............................................2
Section 2.1 Purchase of Shares; Closing...............................2
Article III REPRESENTATIONS AND WARRANTIES...............................3
Section 3.1 Representations and Warranties of the Company.............3
Section 3.2 Representations and Warranties of the Purchaser...........6
Article IV OTHER AGREEMENTS OF THE PARTIES...............................8
Section 4.1 Transfer Restrictions.....................................8
Section 4.2 Furnishing of Information.................................9
Section 4.3 Notice of Certain Events..................................9
Section 4.4 Blue Sky Laws.............................................9
Section 4.5 Integration...............................................9
Section 4.6 Filing of Reports.........................................9
Section 4.7 Furnishing of Rule 144A Materials.........................9
Section 4.8 Solicitation Materials...................................10
Section 4.9 Matters Affecting Purchaser's Rights.....................10
Section 4.10 HSR Act Filings.........................................10
Article V CONDITIONS PRECEDENT TO CLOSING...............................10
Section 5.1 Conditions Precedent to Obligations of the Purchaser.....10
Section 5.2 Conditions Precedent to Obligations of the Company.......11
Article VI TERMINATION..................................................12
Section 6.1 Termination by Mutual Consent............................12
Section 6.2 Termination by the Company or the Purchaser..............12
Article VII MISCELLANEOUS...............................................12
Section 7.1 Fees and Expenses........................................12
Section 7.2 Entire Agreement.........................................13
Section 7.3 Notices..................................................13
Section 7.4 Indemnification..........................................14
Section 7.5 Arbitration..............................................14
Section 7.6 Amendments; Waivers......................................14
Section 7.7 Headings.................................................14
Section 7.8 Successors and Assigns...................................14
Section 7.9 No Third Party Beneficiaries.............................14
Section 7.10 Governing Law...........................................14
Section 7.11 Survival................................................15
Section 7.12 Counterpart Signatures..................................15
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Section 7.13 Publicity...............................................15
Section 7.14 Severability............................................15
Section 7.15 Remedies................................................15
Exhibit A........Certificate of Designation
Exhibit B........Form of Opinion of internal counsel to Century Aluminum Company
Exhibit C........Certificate of Officers of Century Aluminum Company
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CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT, dated as of March 30, 2001
(this "Agreement"), by and between Century Aluminum Company, a Delaware
corporation (the "Company"), and Glencore AG, a Swiss company (the "Purchaser").
WHEREAS, the Company desires to issue and sell to the Purchaser and the
Purchaser desires to acquire shares of the Company's 8% Cumulative Convertible
Preferred Stock, $0.01 par value per share (the "Preferred Stock").
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"Affiliate" means, with respect to any Person, any Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control with")
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Business Day" shall mean a day (other than a Saturday or Sunday) on which
commercial banks are open for business in London, Switzerland and New York.
"Certificate of Designation" shall have the meaning set forth in Section
2.1(a).
"Closing" shall have the meaning set forth in Section 2.1(b).
"Closing Date" shall have the meaning set forth in Section 2.1(b).
"Common Stock" shall mean the Company's common stock, par value $0.01 per
share.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Financial Statements" shall have the meaning set forth in Section 3.1(j).
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Lien" shall mean, with respect to any asset, any mortgage, lien, pledge,
encumbrance, charge or security interest of any kind in or on such asset or the
revenues or income thereon or therefrom.
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"Material Adverse Effect" shall have the meaning set forth in Section
3.1(a).
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Offering Circular" shall mean the Preliminary Offering Circular dated
March 9, 2001 relating to the Senior Secured Mortgage Notes of the Company due
2008.
"Per Share Consideration" shall have the meaning set forth in Section
2.1(a).
"Person" shall mean an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Preferred Stock" shall have the meaning set forth in the recitals hereto.
"Purchase Price" shall have the meaning set forth in Section 2.1(a).
"SEC" shall mean the U.S. Securities and Exchange Commission.
"SEC Documents" shall have the meaning set forth in Section 3.1(j).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shares" shall have the meaning set forth in Section 2.1(a).
"Subsidiaries" shall have the meaning set forth in Section 3.1(a).
"Underlying Shares" shall mean the shares of Common Stock into which the
Shares are convertible in accordance with the terms hereof and the Certificate
of Designation.
ARTICLE II
PURCHASE OF SHARES
Section 2.1 Purchase of Shares; Closing. (a) Subject to the terms and
conditions herein set forth, the Company shall issue and sell to the Purchaser,
and the Purchaser shall purchase from the Company on the Closing Date 500,000
shares of the Preferred Stock (the "Shares"), which shall have the respective
rights, preferences and privileges set forth in Exhibit A hereto (the
"Certificate of Designation") for an aggregate purchase price of US$25,000,000
(the "Purchase Price"); and a per share price of US$50 (the "Per Share
Consideration").
(b) The closing of the purchase and sale of the Shares (the "Closing")
shall take place at the offices of Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Mosle LLP
immediately following the execution hereof, or at such other time and/or place
as the Purchaser and the Company may agree, provided, however, in no case shall
the Closing take place later than April 30, 2001. The date of the Closing is
hereinafter referred to as the "Closing Date".
(c) At the Closing, (i) the Company shall deliver to the Purchaser (A) one
or more stock certificates representing the Shares purchased hereunder,
registered in the name of
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the Purchaser and (B) all other documents, instruments and writings required to
have been delivered at or prior to Closing by the Company pursuant to this
Agreement and (ii) the Purchaser shall deliver to the Company (A) the Purchase
Price in United States dollars in immediately available funds by wire transfer
to an account designated in writing by the Company at least two Business Days
prior to the Closing and (B) all other documents, instruments and writings
required to have been delivered at or prior to Closing by the Purchaser pursuant
to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Company. The Company
hereby represents and warrants to the Purchaser as follows:
(a) Organization and Qualification. The Company and each of its
subsidiaries on the date hereof (the "Subsidiaries") is a corporation, duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with the requisite corporate power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. Each of the Company and the Subsidiaries is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be
so qualified or in good standing, as the case may be, has not had and could not
reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the condition (financial or otherwise), business, operations,
assets or prospects of the Company and the Subsidiaries, taken as a whole, or on
the ability of the Company to consummate the transactions contemplated hereby (a
"Material Adverse Effect").
(b) Authorization; Enforcement. The Company has the requisite corporate
power and authority to enter into and to consummate the transactions
contemplated hereby and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Company. This Agreement has been duly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general application.
(c) Capitalization. Subject to the vesting of additional performance share
units, the authorized, issued and outstanding capital stock of the Company is as
set forth in the SEC Documents. All outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and non-assessable. No
shares of capital stock of the Company are entitled to preemptive or similar
rights. Other than additional option grants in an aggregate of not more than
25,000 options and except as disclosed in the SEC Documents, other than the
Shares, there are no outstanding options, warrants, script rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or
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exchangeable for, or giving any Person any right to subscribe for or acquire any
shares of capital stock, or contracts, commitments, understandings, or
arrangements by which the Company or any Subsidiary is or may become bound to
issue additional shares of capital stock, or securities or rights convertible or
exchangeable into shares of capital stock of the Company. Neither the Company
nor any Subsidiary is in violation of any of the provisions of its respective
certificate of incorporation, bylaws or other constituent documents. Other than
as set forth in the SEC Documents or the Offering Circular, there are no
outstanding rights (other than those of which have been satisfied) which permit
the holder thereof to cause the Company to file a registration statement under
the Securities Act or which permit the holder thereof to include securities of
the Company in a registration statement filed by the Company under the
Securities Act, and there are no outstanding agreements or other commitments
which otherwise relate to the registration of any securities of the Company
under the Securities Act. All securities of the Company heretofore issued and
sold by the Company were issued and sold in compliance with all applicable
Federal and state securities laws. Assuming that the representations and
warranties of the Purchaser set forth in Section 3.2 are true and correct, the
offering, issuance and sale of the Shares and the Underlying Shares will be
exempt from the registration requirements of the Securities Act and applicable
state securities laws.
(d) Issuance of Shares. The Shares are duly authorized and, when issued and
paid for in accordance with the terms hereof, shall be validly issued, fully
paid and nonassessable. The Company has and at all times while the Shares are
outstanding will maintain an adequate reserve of shares of Common Stock to
enable it to perform its obligations under this Agreement and the Certificate of
Designation. When issued in accordance with the terms hereof and the Certificate
of Designation, the Underlying Shares will be duly authorized, validly issued,
fully paid and nonassessable. The issuance of the Shares and the Underlying
Shares will not be subject to any pre-emptive rights or similar rights with
respect to such Shares or such Underlying Shares.
(e) No Conflicts. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) conflict with or violate any
provision of its certificate of incorporation or bylaws, or (ii) conflict with,
or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any Subsidiary is a party), or by which any
property or asset of the Company or any Subsidiary is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company or its Subsidiaries is subject (including Federal and state
securities laws and regulations), or by which any property or asset of the
Company or any Subsidiary is bound or affected.
(f) Consents and Approvals. Except for the filing of the Certificate of
Designation and any required approvals under the HSR Act, neither the Company
nor any Subsidiary is required to obtain any consent, waiver, authorization or
order of, or make any filing or registration with, any court or other federal,
state, local or other governmental authority having jurisdiction over the
Company or other Person in connection with (i) the execution, delivery and
performance by the Company of this Agreement, (ii) the valid and lawful
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authorization, issuance, sale and delivery of the Shares or (iii) the valid and
lawful authorization, reservation, issuance, sale and delivery of the Underlying
Shares.
(g) Litigation; Proceedings. Except as disclosed in the SEC Documents,
there is no action, suit, notice of violation, proceeding or investigation
pending or, to the best knowledge of the Company, threatened against the Company
or any of its Subsidiaries or any of their respective properties before or by
any court, arbitral tribunal or panel, or governmental or administrative agency
or regulatory authority (Federal, State, county, local or foreign) which (i)
relates to or challenges the legality, validity or enforceability of this
Agreement, the Shares or the Underlying Shares, (ii) could reasonably be
expected to, individually or in the aggregate, have a Material Adverse Effect or
(iii) could reasonably be expected to, individually or in the aggregate,
materially impair the ability of the Company to perform fully and on a timely
basis its obligations under this Agreement.
(h) No Default or Violation. Neither the Company nor any Subsidiary (i) is
in default under or in violation of any indenture, loan or credit agreement or
any other agreement or instrument to which it is a party or by which it or any
of its properties is bound, except such conflicts or defaults as could not
reasonably be expected to have a Material Adverse Effect, (ii) is in violation
of any order of any court, arbitral tribunal, panel or governmental body, except
for such violations as could not reasonably be expected to have a Material
Adverse Effect, or (iii) is in violation of any statute, rule or regulation of
any governmental authority which could (individually or in the aggregate) (x)
adversely affect the legality, validity or enforceability of this Agreement, (y)
reasonably be expected to have a Material Adverse Effect or (z) adversely impair
the Company's ability or obligation to perform fully on a timely basis its
obligations under this Agreement.
(i) Private Offering. Neither the Company nor any Person acting on its
behalf has taken or will take any action (including, without limitation, any
offering of any securities of the Company under circumstances which would
require the integration of such offering with the offering of the Shares under
the Securities Act) which might subject the offering, issuance or sale of the
Shares to the registration requirements of Section 5 of the Securities Act.
(j) SEC Documents. The Company has filed with the SEC all reports and
registration statements and other filings required to be filed by it under the
rules and regulations of the SEC, for the two years preceding the date hereof
(the foregoing materials being collectively referred to herein as the "SEC
Documents") on a timely basis. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations of the SEC promulgated
thereunder, and none of the SEC Documents, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The financial
statements of the Company, including the notes thereto, included in the SEC
Documents (the "Financial Statements") were complete and correct in all material
respects as of their respective dates, complied as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto as of their respective dates,
and were prepared in accordance with generally accepted
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accounting principles applied on a basis consistent throughout the periods
indicated (except as may be indicated in the notes thereto or, in the case of
unaudited statements included in Quarterly Reports on Form 10-Q, as permitted by
Form 10-Q of the SEC). The Financial Statements fairly present the financial
condition and operating results of the Company and its Subsidiaries at the dates
and for the periods indicated therein (subject, in the case of unaudited
statements, to normal year-end adjustments). There has been no change in the
Company's accounting policies except as described in the notes to the Financial
Statements.
(k) Absence of Certain Charges.
Except as otherwise disclosed in the SEC Documents or the Offering
Circular, since December 31, 2000, there has not been:
(i) Any material change in the assets, liabilities, financial condition,
business or results of operations of the Company and its Subsidiaries from that
reflected in the Financial Statements, except changes in the ordinary course of
business which could not reasonably be expected to, either individually or in
the aggregate, constitute a Material Adverse Effect;
(ii) Any change in the contingent obligations of the Company or its
Subsidiaries, whether by way of guaranty, endorsement, indemnity, warranty or
otherwise, except such changes as could not reasonably be expected to, either
individually or in the aggregate, constitute a Material Adverse Effect;
(iii) Any damage, destruction or loss, whether or not covered by insurance,
which could reasonably be expected to have a Material Adverse Effect;
(iv) With the exception of payments of cash dividends, any declaration,
setting aside or payment of any dividend or other distribution of the assets or
securities of the Company in respect of outstanding capital stock of the
Company;
(v) Any material contract entered into by the Company or any of its
Subsidiaries, other than in the ordinary course of business and as provided to
the Purchaser, or any material amendment or termination of, or default under,
any material contract to which the Company or any of its Subsidiaries is a party
or by which any of them are bound;
(vi) Any commitment or agreement by the Company or any of its Subsidiaries
to do any of the things described in the preceding clauses (i) through (v); or
(vii) Any other event or condition of any character that has had or that
could reasonably be expected to have a Material Adverse Effect.
Section 3.2 Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Company as follows:
(a) Organization; Authority. The Purchaser is a corporation duly and
validly existing and in good standing under the laws of Switzerland. The
Purchaser has the requisite power and authority to enter into and to consummate
the transactions contemplated hereby and
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otherwise to carry out its obligations hereunder. The purchase of the Shares by
the Purchaser hereunder has been duly authorized by all necessary action on the
part of the Purchaser. This Agreement has been duly executed and delivered by
the Purchaser and constitutes the valid and legally binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights generally and to general principles of equity.
(b) Consents and Approvals. The Purchaser is not required to obtain any
consent, waiver, authorization or order of, or make any filing or registration
with, any court or other federal, state, local or other governmental authority
having jurisdiction over the Purchaser or other Person in connection with the
execution, delivery and performance by the Purchaser of this Agreement.
(c) Litigation; Proceedings. There is no action, suit, notice of violation,
proceeding or investigation pending or, to the best knowledge of the Purchaser,
threatened against the Purchaser before or by any court, arbitral tribunal or
panel, or governmental or administrative agency or regulatory authority
(Federal, State, county, local or foreign) which (i) relates to or challenges
the legality, validity or enforceability of this Agreement or (ii) could
reasonably be expected to, individually or in the aggregate, materially impair
the ability of the Purchaser to perform fully and on a timely basis its
obligations under this Agreement.
(d) Investment Intent. The Purchaser is acquiring the Shares and the
Underlying Shares for its own account for investment purposes only and not with
a view to or for distributing or reselling such Shares or Underlying Shares or
any part thereof or interest therein in violation of the Securities Act, without
prejudice, however, to the Purchaser's right, subject to the provisions of this
Agreement, at all times to sell or otherwise dispose of all or any part of such
Shares or Underlying Shares under an effective registration statement under the
Securities Act and in compliance with applicable State securities laws or in a
transaction exempt from, or outside the scope of such registration requirements.
(e) Purchaser Status. At the time the Purchaser was offered the Shares, it
was, and at the date hereof, it is, and at the Closing Date, it will be, an
"accredited investor" as defined in Rule 501(a) under the Securities Act.
(f) Experience of Purchaser. The Purchaser, either alone or together with
its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Shares, and has so evaluated the
merits and risks of such investment.
(g) Ability of Purchaser to Bear Risk of Investment. The Purchaser is able
to bear the economic risk of an investment in the Shares and, at the present
time, is, and at the Closing Date it will be, able to afford a complete loss of
such investment.
(h) Access to Information. The Purchaser acknowledges that it has been
afforded (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the
terms and conditions of the
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offering of the Shares and the merits and risks of investing in the Shares, (ii)
access to information about the Company and the Company's financial condition,
results of operations, business, properties, management and prospects sufficient
to enable it to evaluate its investment in the Common Stock, and (iii) the
opportunity to obtain such additional information which the Company possesses or
can acquire without unreasonable effort or expense that is necessary to make an
informed investment decision with respect to the Shares.
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
Section 4.1 Transfer Restrictions. If the Purchaser should decide to
dispose of any of the Shares to be purchased by it hereunder (and upon
conversion thereof, any Underlying Shares), the Purchaser understands and agrees
that it may do so only (i) pursuant to an effective registration statement under
the Securities Act, (ii) to the Company or (iii) pursuant to an available
exemption from or in a transaction not subject to registration under the
Securities Act. In connection with any transfer of any Shares other than
pursuant to an effective registration statement or to the Company, the Company
may require that the transferor of such Shares provide to the Company, at the
transferor's expense, an opinion of counsel experienced in the area of United
States securities laws selected by the transferor and reasonably acceptable to
the Company, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such Shares under the Securities Act or any State securities
laws.
The Purchaser agrees to the imprinting of the following legend on
certificates representing the Shares:
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, THEY MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT (A) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (B) PURSUANT
TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.
The legend set forth above may be removed if and when the Shares
represented by such certificate or the Underlying Shares, as the case may be,
are disposed of pursuant to an effective registration statement under the
Securities Act or in the opinion of counsel to the Company experienced in the
area of United States securities laws such legend is no longer required under
applicable requirements of the Securities Act or any state securities laws. The
stock certificates representing the Shares and the Underlying Shares shall also
bear any other legends required by applicable Federal or state securities laws,
which legends may be removed when, in the opinion of counsel to the Company
experienced in the area of the applicable securities laws, such legends are no
longer required under the applicable requirements of such securities laws. The
Company
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agrees that it will provide the Purchaser, upon request, with a substitute stock
certificate or certificates, free from such legend at such time as such legend
is determined to be no longer applicable. The Company makes no representation,
warranty or agreement as to the availability, now or hereafter, of any exemption
from registration under the Securities Act with respect to any resale of Shares
or Underlying Shares.
Section 4.2 Furnishing of Information. As long as the Purchaser owns any
Shares, if requested, the Company will promptly furnish to it all reports filed
by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act (or if the
Company is not at the time required to file reports pursuant to such sections,
unaudited quarterly and audited annual financial statements prepared in
accordance with generally accepted accounting principles).
Section 4.3 Notice of Certain Events. The Company shall (i) advise the
Purchaser promptly after obtaining knowledge thereof, and, if requested by the
Purchaser, confirm such advice in writing, of the issuance by any state
securities commission of any stop order suspending the qualification or
exemption from qualification of the Shares or the Common Stock for offering or
sale in any jurisdiction, or the initiation of any proceeding for such purpose
by any state securities commission or other regulatory authority, (ii) use its
best efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption from qualification of the Shares or the Common Stock
under any state securities or Blue Sky laws, and (iii) if at any time any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Shares or
the Common Stock under any such laws, use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
Section 4.4 Blue Sky Laws. The Company shall cooperate with the Purchaser
in connection with the qualification of the Shares and the Underlying Shares
under the securities or Blue Sky laws of such jurisdictions as the Purchaser may
request and to continue such qualification at all times; provided, however, that
neither the Company nor its Subsidiaries shall be required in connection
therewith to qualify as a foreign corporation where they are not now so
qualified.
Section 4.5 Integration. The Company shall not and shall use its best
efforts to ensure that no Affiliate shall sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in Section
2 of the Securities Act) that would be integrated with the offer or sale of the
Shares or the Underlying Shares in a manner that would require the registration
under the Securities Act of the sale of the Shares or Underlying Shares to the
Purchaser.
Section 4.6 Filing of Reports. For so long as the Company is subject to the
filing requirements of the Exchange Act, the Company shall timely file with the
SEC all reports required to be filed by it under the Exchange Act.
Section 4.7 Furnishing of Rule 144A Materials. The Company shall, for so
long as any of the Shares or Underlying Shares remain outstanding and during any
period in which it is not subject to Section 13 or 15(d) of the Exchange Act,
make available to any registered holder of Shares or Underlying Shares in
connection with any sale thereof and any prospective purchaser
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of such Shares or Underlying Shares from such Person, the following information
in accordance with Rule 144A(d)(4) under the Securities Act: a brief statement
of the nature of the business of the Company and the products and services it
offers and the Company's most recent audited balance sheet and profit and loss
and retained earnings statements, and similar audited financial statements for
such part of the two preceding fiscal years as the Company has been in
operation.
Section 4.8 Solicitation Materials. The Company has not and shall not
solicit any offer to buy or sell the Shares or Underlying Shares by means of any
form of general solicitation or advertising.
Section 4.9 Matters Affecting Purchaser's Rights. From the date hereof
through the Closing Date, the Company shall not and shall cause the Subsidiaries
not to, without the consent of the Purchaser, (i) amend its Certificate of
Incorporation, bylaws or other constituent documents so as to adversely affect
any rights of the Purchaser; (ii) split, combine or reclassify its outstanding
capital stock; (iii) other than the payment of a cash dividend, declare,
authorize, set aside or pay any dividend or other distribution with respect to
the Common Stock; or (iv) enter into any agreement with respect to any of the
foregoing.
Section 4.10 HSR Act Filings. If a filing is required under the HSR Act in
connection with the issuance of the Shares or the Underlying Shares, the Company
shall, as expeditiously as possible, prepare and file, and shall cooperate with
the Purchaser in its preparation and filing of, any documents required under the
HSR Act.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
Section 5.1 Conditions Precedent to Obligations of the Purchaser. The
obligation of the Purchaser to purchase the Shares is subject to the
satisfaction or waiver by the Purchaser, at or prior to the Closing, of each of
the following conditions:
(a) Legal Opinion. The Purchaser shall have received the legal opinion,
addressed to it and dated the Closing Date, form the internal legal counsel for
the Company, substantially in the form of Exhibit B;
(b) Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company contained herein shall be true and
correct as of the date when made and as of the Closing Date as though made at
that time (except that representations and warranties that are made as of a
specific date need be true only as of such date);
(c) Performance by the Company. The Company shall have performed, satisfied
and complied in all material respects with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing;
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(d) No Material Adverse Effect. Since the date of the financial statements
included in the Company's last filed Annual Report on Form 10-K, no event which
could reasonably be expected to have a Material Adverse Effect shall have
occurred;
(e) No Prohibitions. The purchase
of and payment for the Shares (and upon conversion thereof, the Underlying
Shares) hereunder shall not be prohibited or enjoined (temporarily or
permanently) by any applicable law or governmental regulation;
(f) Company
Certificates. The Purchaser shall have received a certificate substantially in
the form of Exhibit C, dated the Closing Date, signed by the Secretary or an
Assistant Secretary of the Company and certifying (i) that attached thereto is a
true, correct and complete copy of (A) the Company's Certificate of
Incorporation, as amended to the date thereof and (B) resolutions duly adopted
by the Board of Directors of the Company, or committee thereof, authorizing the
execution and delivery of this Agreement and the issuance and sale of the Shares
and the Underlying Shares;
(g) No Suspensions of Trading in Common Stock. Trading in the Common Stock
shall not have been suspended by the SEC or the NASD or other exchange or market
on which the Common Stock is listed or quoted (except for any suspension of
trading of limited duration solely to permit dissemination of material
information regarding the Company);
(h) Delivery of Stock Certificates. The Company shall have delivered to the
Purchaser the stock certificate(s) representing the Shares, registered in the
name of the Purchaser;
(i) Filing of Certificate of Designation. The Company shall have filed with
the Secretary of State of the State of Delaware, the Certificate of Designation
in the form attached hereto as Exhibit A;
(j) Acquisition Agreement. The Company and the Purchaser shall have entered
into the Acquisition Agreement for the sale by the Company to the Purchaser of a
20% undivided interest in certain of the assets and properties of the Hawesville
Aluminum Reduction Facility; and
(k) Note Offering. Simultaneously with the Closing, the Company shall have
completed the offering of its Senior Secured First Mortgage Notes due 2008 and
shall have consummated the acquisition of MetalsCo. and related assets.
Section 5.2 Conditions Precedent to Obligations of the Company. The
obligation of the Company to issue and sell the Shares hereunder is subject to
the satisfaction or waiver by the Company, at or prior to the Closing, of each
of the following conditions:
(a) Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties of the Purchaser shall be true and correct as of
the date when made and as of the Closing Date as though made at that time
(except that representations and warranties that are made as of a specific date
need be true only as of such date);
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(b) No Prohibitions. The purchase of and payment for the Shares (and upon
conversion thereof, the Underlying Shares) hereunder shall not be prohibited or
enjoined (temporarily or permanently) by any applicable law or governmental
regulation;
(c) Acquisition Agreement. The Purchaser and the Company shall have entered
into the Acquisition Agreement for the sale by the Company to the Purchaser of a
20% undivided interest in certain of the assets and properties of the Hawesville
Aluminum Reduction Facility; and
(d) Performance by the Purchaser. The Purchaser shall
have performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by it at or prior to the Closing.
ARTICLE VI
TERMINATION
Section 6.1 Termination by Mutual Consent. This Agreement may be terminated
at any time prior to the Closing by the mutual consent of the Company and the
Purchaser.
Section 6.2 Termination by the Company or the Purchaser. This Agreement may
be terminated prior to the Closing by either the Company or the Purchaser, by
giving written notice of such termination to the other party, if:
(a) the Closing shall not have occurred by April 30, 2001; provided that
the terminating party is not then in material breach of its obligations under
this Agreement in any manner that shall have caused the failure referred to in
this paragraph (a);
(b) there shall be in effect any statute, rule, law or regulation that
prohibits the consummation of the Closing or if the consummation of the Closing
would violate any non-appealable final judgment, order, decree, ruling or
injunction of any court of or governmental authority having competent
jurisdiction; or
(c) there shall have been an amendment to the Securities Act or the rules
and regulations promulgated thereunder or an interpretive release promulgated or
issued thereunder, which, in the reasonable judgment of the terminating party,
would materially adversely affect or prohibit without registration under the
Securities Act the transactions contemplated hereby.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Fees and Expenses. The Company shall pay all stamp and other
similar taxes and duties levied in connection with the issuance of the Shares
(and upon conversion thereof, the Underlying Shares) pursuant hereto. The
Purchaser shall be responsible for its own tax liability that may arise as a
result of the investment hereunder or the transactions contemplated by this
Agreement. Whether or not the transactions contemplated by this
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Agreement are consummated or this Agreement is terminated, the Company shall pay
(i) all costs, expenses, fees and all taxes incident to and in connection with:
(A) the preparation and filing of the Certificate of Designation and all
preliminary and final Blue Sky memoranda, (B) the issuance and delivery of the
Shares and the certificates for the Shares, and upon conversion thereof, the
Underlying Shares and the certificates for the Underlying Shares (including 50%
of all costs and expenses in connection with any filings required under the HSR
Act), and (C) furnishing such copies of the SEC Documents and all other
information filed with the SEC and all amendments and supplements thereto or the
information required to be delivered under Section 4.7 hereof, as the case may
be, as may reasonably be requested for use in connection with resales of the
Shares and, upon conversion thereof, the Underlying Shares, and (ii) all
reasonable fees and expenses of the counsel and accountants of the Purchaser
incurred by the Purchaser in connection with the negotiation, preparation,
execution and delivery of this Agreement.
Section 7.2 Entire Agreement. This Agreement, together with the Exhibits,
hereto contains the entire understanding of the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
oral or written, with respect to such matters.
Section 7.3 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or mailed by certified or registered mail, postage prepaid,
return receipt requested, or delivered to a nationally recognized next business
day courier for delivery on the next business day, or by facsimile, with a copy
sent as aforesaid and in any instance addressed as follows:
If to the Company:
Century Aluminum Company
0000 Xxxxxx Xxxx
Xxxxxxxx X Xxxxx 000
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxx X. Kitchen, Esq.
If to the Purchaser:
Glencore AG
Xxxxxxxxxxxxxxxxx 0
X.X. Xxx 000
XX-0000 Xxxx
XXXXXXXXXXX
Attn: Chief Financial Officer
or such other address as may be designated in writing hereafter, in the same
manner, by such person.
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Section 7.4 Indemnification. The Company shall indemnify, defend and hold
harmless the Purchaser from and against all liabilities, losses, and damages
(with the exception of consequential, special, indirect and punitive damages),
together with all reasonable costs and expenses related thereto (including,
without limitation, reasonable legal and accounting fees and expenses), which
arise out of, result from or relate to any misrepresentation or breach by the
Company of, or any failure by the Company to perform, any of its
representations, warranties, covenants, obligations or agreements in this
Agreement, the Certificate of Designation or any other instrument furnished by,
or on behalf of, the Company under this Agreement. Notwithstanding anything to
the contrary contained in this Section 7.4, the Company's liability under this
Section shall not exceed US$25,000,000 plus the reasonable costs and expenses
incurred by the Purchaser under this Section 7.4. Section
7.5 Arbitration. All controversies, claims, differences or disputes arising
under, relating to or connected with this Agreement shall be finally settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA Rules"). The parties agree that such
arbitration (i) shall take place in New York, New York, U.S.A., (ii) shall be
before a panel of three (3) arbitrators chosen in accordance with the AAA Rules,
and (iii) shall be conducted in the English language. The award in any such
arbitration shall be final, binding and conclusive; and judgment thereon may be
entered in any court of competent jurisdiction.
Section 7.6 Amendments; Waivers. No provision of this Agreement may be
waived or amended except in a written instrument signed, in the case of an
amendment, by both the Company and the Purchaser, or, in the case of a waiver,
by the party against whom enforcement of any such waiver is sought. No waiver of
any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
Section 7.7 .Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
Section 7.8 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and permitted
assigns, including each other Person who shall become a registered holder of the
Shares or the Underlying Shares transferred to such holder by the Purchaser or
its permitted transferees and their respective legal representatives, successors
and assigns. The Company shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser.
Section 7.9 No Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
Section 7.10 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Delaware without regard to the principles of conflicts of law thereof.
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Section 7.11 Survival. The representations and warranties of the Company
and the Purchaser contained in Article III and the agreements and covenants of
the parties contained in Article IV and this Article VII shall survive the
Closing (or any earlier termination of this Agreement) and any conversion or
transfer of the Shares hereunder.
Section 7.12 Counterpart Signatures. This Agreement may be executed in two
or more counterparts, all of which when taken together shall be considered one
and the same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being understood that
both parties need not sign the same counterpart. In the event that any signature
is delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
Section 7.13 Publicity. The Company and the Purchaser shall consult with
each other in issuing any press releases or otherwise making public statements
with respect to the transactions contemplated hereby and neither party shall
issue any such press release or otherwise make any such public statement without
the prior written consent of the other, which consent shall not be unreasonably
withheld or delayed, unless such press release or public statement is required
by law, in which case, the parties shall consult with each other to the extent
practical under the circumstances regarding the text of such press release or
public statement.
Section 7.14 Severability. In case any one or more of the provisions of
this Agreement shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affected or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
Section 7.15 Remedies. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, the Purchaser
will be entitled to specific performance of the obligations of the Company under
this Agreement and the Company will be entitled to specific performance of the
obligations of the Purchaser hereunder. Each of the Company and the Purchaser
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of any breach of its obligations described in the foregoing
sentence and hereby agrees to waive in any action for specific performance of
any such obligation the defense that a remedy at law would be adequate.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above. CENTURY ALUMINUM COMPANY
By: /s/ Xxxxxx X. Kitchen
-----------------------------------------
Name: Xxxxxx X. Kitchen
Title: Executive Vice President,
General Counsel and Chief
Administrative Officer
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GLENCORE AG
By: /s/ Xxxxx Xxxxxxx Xxxxxx Xxx
---------------------------------
Name: Xxxxx Xxxxxxx Xxxxxx Xxx
Title: Director Director
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