SUPPORT AGREEMENT
Exhibit
10.01
Execution
Copy
SUPPORT
AGREEMENT (the “Agreement”), dated as of May 4, 2009, by and between Glencore
AG, a Swiss corporation (“Glencore”) and Century Aluminum Company, a Delaware
corporation (the “Company”).
WHEREAS,
the Company has proposed or intends to propose that, among other things, the
stockholders of the Company (i) approve amending the Company’s Restated
Certificate of Incorporation, as amended to increase the number of authorized
shares of the Company’s common stock, par value $0.01 per share (such common
stock or any other securities issued in exchange or substitution for all of the
issued and outstanding common stock of the Company, including in any
reclassification, recapitalization, merger, consolidation, exchange or other
similar reorganization, the “Common Stock”) to 195,000,000 (the “Charter
Proposal”), (ii) approve amending the Company’s Amended and Restated 1996 Stock
Incentive Plan (the “1996 Plan”) to increase the number of shares authorized for
issuance under the 1996 Plan to 10,000,000 and extend its term through May 27,
2019 (the “SIP Proposal”), (iii) elect each of Xxxxx X. Xxxxxx, Xxxxx X.
Xxxxxxxxxx and Xxxx Xxxxxxxx as Class I directors to the Company’s Board of
Directors, each for a term of three years (the “Class I Director Election”), and
(iv) ratify the appointment of Deloitte & Touche LLP as the Company’s
independent registered public accounting firm for the fiscal year ending
December 31, 2009 (together with the Charter Proposal, the SIP Proposal and the
Class I Director Election, the “Proposals”), in each case as set forth in the
Company’s Definitive Proxy Statement, dated as of April 17, 2009, as amended
through the date hereof and as further amended to reflect that the Charter
Proposal will provide for an increase in the number of authorized shares of
Common Stock to 195,000,000;
WHEREAS,
Glencore and the Company desire to enter into this Agreement to establish
certain arrangements with respect to the Common Stock and other Equity
Securities Beneficially Owned by Glencore and its Affiliates and
other related corporate matters;
NOW,
THEREFORE, for good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
1. Agreement to Vote In Favor
of the Proposals. Glencore agrees that at the Company’s Annual
Meeting of Stockholders currently scheduled to be held on May 27, 2009
(including any adjournment or postponement thereof), Glencore shall vote (or
cause to be voted), in person or by proxy, all the Voting Securities (whether
acquired heretofore or hereafter) that are Beneficially Owned directly by
Glencore, any company of which Glencore is a direct or indirect Subsidiary, or
any other direct or indirect Subsidiary of Glencore or any such company (the
“Glencore Parties”), in favor of adoption and approval of the
Proposals. Glencore hereby represents and warrants that as of the
date hereof, the Glencore Parties Beneficially Owns 28,262,091 shares
of Voting Securities.
2. Preemptive
Rights.
(a) Subject
to Glencore’s compliance in all respects with its obligations under Section 1 of
this Agreement, if the Company or any Affiliates of the Company proposes to
issue Equity Securities (other than in each case, Excluded Securities) to a
third party (other than Glencore or its Affiliates) in a registered public
offering or pursuant to Rule 144A or Regulation S of the Securities Act of 1933
(as amended, the “Securities Act”) (any such registered public offering or Rule
144A or Regulation S offering, an "Underwritten Offering") or in any Group
Issuance, in the case of any such Underwritten Offering or Group Issuance,
whether (x) for cash or (y) in a Triggering Exchange Offer (the securities
proposed to be issued as described above, including any other securities issued
in connection therewith, the "Offered Securities"), Glencore shall have the
right to purchase or subscribe for a number or amount of such Offered Securities
up to the percentage of the Offered Securities as is equal to the Ownership
Percentage (determined as of the date of the New Issuance Notice (as defined
below)) (the “New Securities”). The Company shall provide Glencore with notice
of any proposed issuance subject to this right no more than 15 and no less than
7 days prior to such issuance specifying, in good faith, the maximum number of
shares and proposed terms of such issuance, including the offering price range
and the proposed closing date (such notice, including any new or revised notice
pursuant to the following sentences, the “New Issuance Notice”). If
the issuance described in a New Issuance Notice does not occur within 7 days of
the date indicated in the New Issuance Notice, the Company shall provide
Glencore with a new New Issuance Notice no more than 15 and no less than 7 days
prior to such issuance. If the Company intends to sell an amount of
Offered Securities that exceed the maximum number of shares in the New Issuance
Notice, the Company shall provide Glencore with a revised New Issuance
Notice.
(b) In the
case of an Underwritten Offering, Glencore shall be entitled to exercise its
right hereunder by notifying the Company and committing to purchase or subscribe
for New Securities within the same time periods and otherwise on the same basis
as the other investors who are invited to participate or are participating in
the Underwritten Offering in accordance with market custom and practice from
time to time for investors expressing interest in and committing to participate
in an Underwritten Offering, except that Glencore will give the Company a good
faith indication of its intention to participate in an Underwritten Offering not
later than two days prior to the proposed offering date (the “Indication
Deadline”), it being understood that such indication shall not commit Glencore
to participate in the offering. If Glencore does not give such
indication by the Indication Deadline or indicates that it will not participate
in such Underwritten Offering, Glencore’s right to purchase the New Securities
shall terminate.
(c) If
Glencore desires to participate in a Group Issuance, then no later than two days
prior to the proposed issuance day specified in the New Issuance Notice,
Glencore shall give a good faith notice to the Company (an “Exercise Notice”) of
the number of Equity Securities it desires to purchase (the “Glencore Amount”)
and the maximum purchase price per Equity Security that Glencore is willing to
pay (the “Glencore Maximum Price”). In the case of a Group Issuance
other than an Exchange Offer, if the actual purchase price per Equity Security
to be paid in such Group Issuance by Persons other than Glencore is in excess of
the Glencore Maximum Price (the “Final Price”), Glencore shall be entitled to
one additional five-day period to give notice to the Company of its election to
purchase the Glencore Amount at the Final Price. In the case of an
Exchange Offer, if the Cash Equivalent Amount applicable to such Exchange Offer
is in excess of the Glencore Maximum Price, Glencore shall be entitled to one
additional five-day period to give notice to the Company of its election to
purchase the Glencore Amount at the Cash Equivalent
Amount. Glencore’s right to purchase the New Securities in any Group
Issuance shall terminate if Glencore does not provide an Exercise Notice, which
shall be an irrevocable commitment (subject to the two immediately preceding
sentences, as applicable) to exercise its preemptive rights pursuant to this
Section 2, no later than two days prior to the proposed issuance day as provided
in the first sentence of this Section 2(c).
(d) Notwithstanding
anything herein to the contrary, in the case of an Exchange Offer, (i) the New
Securities issuable to Glencore shall be securities in addition to the Offered
Securities to be issued in the Exchange Offer, in such amount as is required for
Glencore to maintain its Ownership Percentage (determined as of such time as
provided in Section 2(a)) taking into account any participation by Glencore in
the Exchange Offer, (ii) the purchase price for any New Securities Glencore
purchases or subscribes for shall equal their Cash Equivalent Amount, and shall
be payable in cash, and (iii) if Glencore exercises its preemptive right to
acquire New Securities in connection with an Exchange Offer, Glencore shall also
participate in the Exchange Offer with respect to any Exchange Offer Securities
it has the sole right to dispose of.
(e) Notwithstanding
an any indication or Exercise Notice given by Glencore under Section 2(b) or
2(c), Glencore shall have no obligation to purchase any securities in any
issuance (i) if percentage of such issuance to be purchased by Glencore would
exceed its Ownership Percentage of the total number of securities in such
issuance, or (ii) at a price or on other terms that are less favorable to it
than the price and other terms on which any other investor is participating
in such issuance.
3. Further Assurances.
From time to time after the date hereof, the parties agree to cooperate with
each other, and to execute and deliver any further instruments or documents and
to take all such further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
4. Ownership
Information. For purposes of this Agreement, Glencore, in
determining the amount of outstanding Equity Securities, may rely upon
information set forth in the most recent quarterly or annual report, and any
current report or other report or document subsequent thereto, filed by the
Company with the Securities and Exchange Commission (the “Commission”), unless
the Company shall have updated such information by delivery of notice to
Glencore. Upon the written request of the Company, Glencore shall
promptly deliver to the Company a written notice specifying the amount of Equity
Securities then Beneficially Owned by the Glencore
Parties. Upon the written request of Glencore, the Company shall
promptly deliver to Glencore a written notice specifying the amount of Equity
Securities then outstanding and the number of shares of Common Stock underlying
such Equity Securities.
5. Term of Agreement;
Termination. Except as otherwise provided in this Agreement,
this Agreement shall terminate at the earliest of the following: (A) the
Ownership Percentage shall be less than 10% for a period of three continuous
months or (B) upon the written agreement of the parties
hereto.
6. Entire Agreement; Amendments
and Waivers; Assignment. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof and contains the entire agreement among the parties with
respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be modified or
waived, except by an instrument in writing signed by each party hereto (or in
the case of a waiver, the party granting the waiver). No waiver of
any provisions hereof by either party shall be deemed a waiver of any other
provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party. No party
hereto may assign any rights or obligations hereunder to any other person,
except upon the prior written consent of each other party. Nothing in
this Agreement, expressed or implied, is intended to or shall confer upon any
other person or entity, other than the parties hereto or their respective
successors, any rights, remedies, obligations or liabilities under or by reason
of this Agreement. For the avoidance of doubt, that certain
Standstill and Governance Agreement, dated as of July 7, 2008, between Glencore
and the Company shall continue in full force and effect, in accordance with the
terms thereof.
7. Notices. Any
notice, request, claim, demand or other communication under this Agreement (each
a “Notice”) shall be in writing, shall be either personally delivered, sent by
reputable overnight courier service (charges prepaid), sent by facsimile to the
address for such Person set forth below or such other address as the recipient
party has specified by prior written notice to the other parties hereto and
shall be deemed to have been given hereunder on (i) the date of delivery if
sent by messenger, (ii) on the Business Day following the Business Day on
which delivered to a recognized courier service if sent by overnight courier or
(iii) upon confirmation of receipt, if sent by fax.
If to the
Company:
Office of
the General Counsel
0000
Xxxxxx Xxxx
Xxxxxxxx
X, Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
With a
copy to:
Wachtell,
Lipton, Xxxxx & Xxxx
00 X
00xx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
If to
Gencore:
Glencore
AG
Xxxxxxxxxxxxxxxxx
0
XX-0000
Xxxx, Xxxxxxxxxxx
Attn:
Head of Aluminum Department
Telephone:
x00-00-000-0000
Facsimile:
x00-00-000-0000
with a
copy to:
Glencore
AG
Xxxxxxxxxxxxxxxxx
0
XX-0000
Xxxx, Xxxxxxxxxxx
Attn:
Xxxxxxx Xxxxxxxx
Telephone:
x00-00-000-0000
Facsimile:
x00-00-000-0000
with a
copy to
Xxxxxx,
Xxxxxx-Xxxxxxx, Colt & Mosle LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000-0000
Attn:
Xxxxxx X. Xxxx
Attn:
Xxxxxxx X. Xxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
8. Severability. If
any provision of this Agreement or the application of such provision to any
person or circumstances shall be held invalid or unenforceable by a court of
competent jurisdiction, such provision or application shall be unenforceable
only to the extent of such invalidity or unenforceability, and the remainder of
the provision held invalid or unenforceable and the application of such
provision to persons or circumstances, other than the party as to which it is
held invalid, and the remainder of this Agreement, shall not be
affected.
9. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument.
10. Headings. All
Section headings herein are for convenience of reference only and are not part
of this Agreement, and no construction or reference shall be derived
therefrom.
11. Choice of Law; Dispute
Resolution; Remedies.
(a) This
Agreement, the rights and obligations of the parties under this Agreement and
any claim or controversy directly or indirectly based upon or arising out of
this Agreement (whether based on contract, tort or any other theory), including
all matters of construction, validity and performance, shall in all respects be
governed by and interpreted, construed and determined in accordance with, the
laws of the State of New York, without giving effect to any conflict of laws
rules that might lead to the application of the laws of any other
jurisdiction.
(b) Any
dispute, controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be finally settled by binding arbitration in New York,
New York administered by the American Arbitration Association (AAA) under
its Commercial Arbitration Rules, (the “AAA Rules”) and judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. The arbitral tribunal shall be composed of three
arbitrators, selected in accordance with the AAA Rules. The language
to be used in the arbitral proceedings shall be in English. All
arbitral proceedings conducted pursuant to this Section 11(b), all
information disclosed and all documents submitted or issued by or on behalf of
any of the disputing parties or the arbitrators in any such proceedings as well
as all decisions and awards made or declared in the course of any such
proceedings shall be kept strictly confidential, except for any disclosure as
may be required by law, and may not be used for any other purpose than these
proceedings nor be disclosed to any third party without the prior written
consent of the party to which the information relates or, as regards to a
decision or award, the prior written consent of all the other disputing
parties.
(c) The
parties hereto agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with its
specific terms or were otherwise breached. It is accordingly agreed
that, notwithstanding Section 11(b), the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court having jurisdiction,
this being in addition to any other remedy to which they are entitled at law or
in equity
(d) All
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such right, power
or remedy by such party.
12. Interpretations and Certain
Defined Terms. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation.” As used herein, the following
terms shall have the following meanings:
“Affiliate” means,
with respect to any Person, any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by or is under
common control with, such specified Person; provided, however, that solely
for purposes of this Agreement, notwithstanding anything to the contrary set
forth herein, neither the Company nor any of its Subsidiaries shall be deemed to
be a Subsidiary or Affiliate of Glencore solely by virtue of Glencore’s
ownership of Equity Securities or any other action taken by Glencore or its
Affiliates which is permitted under this Agreement, in each case in accordance
with the terms and conditions of, and subject to the limitations and
restrictions set forth in, this Agreement (and irrespective of the
characteristics of the aforesaid relationships and actions under applicable law
or accounting principles).
“Beneficial Ownership”
by a Person of any securities means that such Person has or shares, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, (i) voting power, which means the power to vote, or to direct
the voting of, such security; and/or (ii) investment power, which means the
power to dispose, or to direct the disposition of, such security; and shall
otherwise be interpreted in accordance with the term “beneficial ownership” as
defined in Rule 13d-3 adopted by the Commission under the Exchange Act;
provided that
for purposes of determining Beneficial Ownership, a Person shall be deemed to be
the Beneficial Owner of any securities which may be acquired by such Person
(irrespective of whether the right to acquire such securities is exercisable’
immediately or only after the passage of time, including the passage of time in
excess of 60 days, the satisfaction of any conditions, the occurrence of
any event or any combination of the foregoing) pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise. For purposes of this Agreement, a
Person shall be deemed to Beneficially Own any securities Beneficially Owned by
its Affiliates or any Group of which such Person or any such Affiliate is a
member.
“Business Day” shall
mean any day that is not a Saturday, a Sunday or other day on which banks are
required or authorized by law to be closed in San Francisco, California or New
York, New York.
“Capital Stock” means,
with respect to any Person at any time, any and all shares, interests,
participations or other equivalents (however designated, whether voting or
non-voting) of capital stock, partnership interests (whether general or limited)
or equivalent ownership interests in or issued by such Person.
“Cash Equivalent
Amount” means, with respect to an Exchange Offer, an amount of cash
equivalent to the average of the daily closing prices, per Unit of the
applicable Exchange Offer Security, on the principal exchange or market on which
the Exchange Offer Security is listed or trades for the five consecutive trading
days ending on the last trading day prior to the public announcement of the
Exchange Offer (or if not publicly announced, the closing of the Exchange Offer)
or, if the Exchange Offer Security has not traded in such period, the value of
the applicable Exchange Offer Security for purposes of this definition shall
determined by the Board of Directors of the Company in good faith, divided by
the number of Equity Securities to be issued in exchange for each Unit of
Exchange Offer Security. A “Unit” of an Exchange Offer Security shall
mean the undiscounted face value of the Exchange Offer Security.
“Equity Securities”
means (a) shares of Common Stock of the Company; (b) any other Capital Stock or
notes, bonds, debentures, options, warrants or other derivatives or other
securities or rights issued by the Company or any Affiliate of the Company that
are convertible, exercisable or exchangeable for or otherwise give their holders
the right to acquire Common Stock of the Company (regardless of whether such
securities or rights are then exercisable, exchangeable or convertible); or (c)
any other Capital Stock, or notes, bonds, debentures, options, warrants or other
derivatives or other securities or rights issued by the Company or any Affiliate
of the Company with an exercise or conversion privilege at a price related to,
or with a value derived from the value of, any Common Stock of the Company
(including any of them that provide solely or partially for settlement in
cash).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended (or any successor
statute).
“Exchange Offer” means
an offering by the Company or any Affiliate of the Company of Equity Securities
in exchange for outstanding debt securities (“Exchange Offer Securities”) issued
by the Company or any Affiliate of the Company that occurs before November 4,
2010.
"Excluded Securities"
means (a) Equity Securities issued to officers, employees or directors of, or
consultants to, the Company or its subsidiaries pursuant to the terms of any
stock option or similar stock incentive plan adopted by the Board, (b) any
Equity Securities issued pursuant to any merger, acquisition, consolidation,
joint venture, strategic alliance or other similarly negotiated private
transaction (including with a single financial sponsor (including affiliates
thereof), license agreement or similar transaction, (c) any Equity Securities
issued pursuant to a subdivision (including by way of a stock dividend) of the
outstanding shares of Common Stock into a larger number of shares of Common
Stock or (d) Equity Securities issued upon the conversion, exercise or exchange
of any of Equity Securities that are outstanding as of the date of this
Agreement or that are subsequently issued in a transaction that complies with
the preemptive rights under this Agreement, in each case, in accordance with the
terms of such Equity Securities.
“Group” shall have the
meaning assigned to it in Section 13(d)(3) of the Exchange
Act.
“Group Issuance” means
one or more offerings of Equity Securities by the Company or any Affiliate of
the Company, (i) to one or more Persons in the case of an Exchange Offer and
(ii) to five or more Persons in any 120 day period in the case of any other
offering, in each case that are exempt from registration under the Securities
Act (counting for purposes of this definition a Person and its Affiliates as 1
person).
“Ownership Percentage”
means, at any time, the ratio, expressed as a percentage, of (i) the sum of (x)
the total number of shares of Common Stock Beneficially Owned directly by
Glencore, any company of which Glencore is a direct or indirect Subsidiary, or
any other direct or indirect Subsidiary of Glencore or any such company and (y)
the total number of shares of Common Stock issuable upon conversion, exchange or
exercise of other Capital Stock Beneficially Owned directly by Glencore, any
company of which Glencore is a direct or indirect Subsidiary, or any other
direct or indirect Subsidiary of Glencore or any such company, to (ii) the
sum of (x) the total number of outstanding shares of Common Stock and
(y) any Common Stock that is issuable upon conversion, exchange or exercise
of any other Capital Stock included in clause (i).
“Person” means any
individual, corporation, limited liability company, limited or general
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, other entity, government or any agency or political
subdivision thereof or any fund (counting for purposes of this definition any
fund or investment manager together with any Affiliates of such investment
manager, its fund and its sponsor as one Person).
“Subsidiary” means,
with respect to any Person, any corporation or other organization, whether
incorporated or unincorporated, of which (x) such Person or any other
Subsidiary of such Person is a general partner (excluding partnerships where the
general partnership interests held by such Person or any Subsidiary of such
Person do not have a majority of the voting interests in such partnership), or
(y) at least a majority of the securities or other interests having by
their terms ordinary voting power to elect a majority of the board of directors
or others performing similar functions with respect to such corporation or other
organization is directly or indirectly Beneficially Owned by such Person and/or
any one or more of its Subsidiaries.
“Triggering Exchange
Offer” means an Exchange Offer in which the Company or any Affiliate of
the Company would issue Equity Securities that, when aggregated with all Equity
Securities issued in previous Exchange Offers (including, for the purposes of
this definition, any Exchange Offer to four or fewer Persons) within a twelve
month period of the date thereof, equal or exceed 30 million shares of Common
Stock (calculated on an as converted, exchanged or exercised basis in the case
of any Equity Securities that are not Common Stock).
“Voting Securities”
means at any time shares of any class of Capital Stock or other securities of
the Company which are then entitled to vote generally in the election of
Directors and not solely upon the occurrence and during the continuation of
certain specified events.
[REMAINDER
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the date first written above.
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CENTURY
ALUMINUM COMPANY
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By:
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/s/ Xxxxxxx X. Bless | |
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Name:
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Xxxxxxx X. Bless | |
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Title:
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Executive Vice President and Chief Financial Officer | |
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GLENCORE
AG
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx Xxxxxxx | |
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Title:
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Director | |
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By:
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/s/ Xxxxxx Xxxxx
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Name:
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Xxxxxx Xxxxx | |
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Title:
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Officer | |
